### ARMED SERVICES BOARD OF CONTRACTAPPEALS 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 ChiefTrial Attorney ChristinaLynn E. McCoy, Esq. MAJ Lawrence Gilbert, JA CPT Anthony Lenze, JA MAJ James W. Nelson, JA

Trial Attorneys OPINION BYADMINISTRATIVE 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 ofa claim for breach ofcontract submitted to the CO on 29 September 20II. KBRS alleges that the government breached its contractual obligation to provide adequate force protection to KBRS and its subcontractors performing contract services in support ofthe war effort in Iraq. For further factual background, see our opinion in 

### KelloggBrown & 

### 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 'dinpart, vacated inpart, andremanded, McHugh v. KelloggBrown & 

### Root Services, Inc., 2015 U.S. App. LEXIS 16513 (Fed. Cir. Sept. 15, 2015). Theprimary 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 behalfof its subcontractors "as a matter ofright"pursuant to FAR 33.201 2
, that its claim does not give the CO adequate notice ofthe 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 pendingjudicial review ofits decision cited above. While the government's motion to dismiss was pending, the United States Court ofAppeals for the Federal Circuit issued its decision in 

### SikorskyAircraft Corp. v. UnitedStates, 773 F.3d 1315 (Fed. Cir. 2014). The court in

### Sikorsky applied the Supreme Court's decision in

### Sebelius v. AuburnRegionalMedical Center, 133 S. Ct. 817 (2013), which articulated a more stringent test for determining whether statutory time limits arejurisdictional, to determine that the six-year limitations period in the CDA is notjurisdictional. 

### Sikorsky, 773 F.3d at 1320-22. This Board has subsequently denied motions to dismiss for lack of jurisdictionthat are based on the CDA limitations period. 

### See, e.g.,AlNawars Co., ASBCA Nos. 59043, 59044, 15-1 BCAif 35,955; 

### Combat SupportAssociates, ASBCA Nos. 58945, 58946, 15-1BCAif35,923. The government may still assert that KBRS's claim is time-barred as an affirmative defense, butbears the burden ofproofon the issue. 

### Alion Science and Technology Corporation, ASBCA No. 58992, 15-1BCAif36,168. The remainder ofthe government's arguments thatthe Board lacksjurisdiction ofKBRS's breach claim are unpersuasive. KBRS's 29 September2011 claim submittal clearly apprised the CO that its breach claim was based on the Army's failure to provide the force protection required ofit by the contract, entitling KBRS and its subcontractors as a matter ofright to mitigate their damages byhiring private security companies. Nor does the Army's assertion regarding the adequacy ofcontract remedies operate as a barto ourjurisdiction.

2 At the time the contract was awarded, the FAR definition of"claim" was found at FAR 33.201. It is now found at FAR2.101.
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 ofContractAppeals Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No.-58583, Appeal ofKellogg Brown & 

### Root Services, Inc., rendered in conformance with the Board's Charter. Dated:

3 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals