ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Kellogg Brown & Root Services, Inc. ) 

) 

Under Contract No. DAAA09-02-D-0007 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58583 

Jason N. Workmaster, Esq. 

John E. Hall, Esq. 

Raymond B. Biagini, Esq. 

Herbert L. Fenster, Esq. 

Alejandro L. Sarria, Esq. 

Covington & Burling LLP 

Washington, DC 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

ChristinaLynn E. McCoy, Esq. 

MAJ Lawrence Gilbert, JA 

CPT Anthony Lenze, JA 

MAJ James W. Nelson, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN 

ON THE GOVERNMENT'S MOTION TO DISMISS 

On 4 June 2013, the government filed a motion to dismiss ASBCA No. 58583 1 

for lack of jurisdiction. Appellant Kellogg Brown & Root Services, Inc. (KBRS) 

opposes. We deny the motion. 

In ASBCA No. 58583, KBRS appeals the contracting officer's (CO's) deemed 

denial of a claim for breach of contract submitted to the CO on 29 September 20 I I. 

KBRS alleges that the government breached its contractual obligation to provide 

adequate force protection to KBRS and its subcontractors performing contract services 

in support of the war effort in Iraq. For further factual background, see our opinion in 

Kellogg Brown & Root Services, Inc., ASBCA No. 56358 et al., I4-I BCA iJ 35,639, 

1 While ASBCA No. 58583 is consolidated with ASBCA Nos. 56358, 57I5I and 57327 

the motion applies only to ASBCA No. 58583. 
ajf'd, rev 'din part, vacated in part, and remanded, McHugh v. Kellogg Brown & Root 

Services, Inc., 2015 U.S. App. LEXIS 16513 (Fed. Cir. Sept. 15, 2015). 

The primary ground for dismissal advanced by the government in its motion was 

that the claim underlying this appeal had been filed outside the six-year statute of 

limitations contained in the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4)(A). 

Additionally, the government argued that KBRS has not asserted a claim on behalf of 

its subcontractors "as a matter of right" pursuant to FAR 33.201 2

, that its claim does 

not give the CO adequate notice of the basis for its claim, and that the claim must fail 

since adequate remedies were available under the contract. The government's motion 

was opposed by KBRS. The Board subsequently stayed further proceedings in this 

appeal pending judicial review of its decision cited above. 

While the government's motion to dismiss was pending, the United States Court 

of Appeals for the Federal Circuit issued its decision in Sikorsky Aircraft Corp. v. 

United States, 773 F.3d 1315 (Fed. Cir. 2014). The court in Sikorsky applied the 

Supreme Court's decision in Sebelius v. Auburn Regional Medical Center, 

133 S. Ct. 817 (2013), which articulated a more stringent test for determining whether 

statutory time limits are jurisdictional, to determine that the six-year limitations period 

in the CDA is not jurisdictional. Sikorsky, 773 F.3d at 1320-22. This Board has 

subsequently denied motions to dismiss for lack of jurisdiction that are based on the 

CDA limitations period. See, e.g., Al Nawars Co., ASBCA Nos. 59043, 59044, 

15-1 BCA if 35,955; Combat Support Associates, ASBCA Nos. 58945, 58946, 

15-1BCAif35,923. The government may still assert that KBRS's claim is time-barred 

as an affirmative defense, but bears the burden of proof on the issue. A lion Science and 

Technology Corporation, ASBCA No. 58992, 15-1BCAif36,168. 

The remainder of the government's arguments that the Board lacks jurisdiction 

of KBRS's breach claim are unpersuasive. KBRS's 29 September 2011 claim 

submittal clearly apprised the CO that its breach claim was based on the Army's failure 

to provide the force protection required of it by the contract, entitling KBRS and its 

subcontractors as a matter of right to mitigate their damages by hiring private security 

companies. Nor does the Army's assertion regarding the adequacy of contract 

remedies operate as a bar to our jurisdiction. 

2 At the time the contract was awarded, the FAR definition of "claim" was found at 

FAR 33.201. It is now found at FAR 2.101. 

2 
DECISION 

For the reasons stated, the government's motion to dismiss ASBCA No. 58583 

for lack of jurisdiction is denied. 

Dated: 19 January 2016 

I concur 

~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No.-58583, Appeal of Kellogg 

Brown & Root Services, Inc., rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals