Kellogg Brown & Root Services, Inc. v. United States
115 Fed. Cl. 168
Fed. Cl.2014Background
- KBR's Restore Iraqi Oil contract included a government indemnification clause under FAR 52.250-1 and Public Law 85-804 for unusually hazardous risks.
- Disputes arose over whether the government must participate in or fund defense of third-party lawsuits related to KBR's contract work at Qarmat Ali.
- KBR submitted communications to the contracting officer (CO) seeking indemnification and government participation, beginning with a December 29, 2010 letter.
- The CO issued an April 2011 denial and a November 18, 2011 denial, while indicating possible future CDA claims for costs of defense and settlements.
- KBR filed suit in the Court of Federal Claims alleging breach of contract and seeking indemnification; the court granted defendant's motion to dismiss for lack of jurisdiction.
- The court held that KBR failed to present a valid CDA claim (for monetary relief) to the CO and that the nonmonetary request could not support monetary relief in this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CDA presentment requirements are satisfied | KBR contends letters implied a CDA claim for final CO decision. | CO did not treat December 2010/June 2011 letters as CDA claims; no final decision. | No jurisdiction absent proper CDA presentment. |
| Whether KBR's December 2010/June 2011 letters constituted a monetary CDA claim | Letters alleged monetary indemnification for defense costs and settlements. | Letters failed to include a sum certain and certification; thus not a valid monetary claim. | Monetary claim invalid for lack of sum certain and certification. |
| Whether KBR's nonmonetary indemnification request could support a monetary claim in this suit | Nonmonetary requests could be translated into monetary relief under the CDA. | Nonmonetary relief cannot support a monetary CDA claim. | Nonmonetary request cannot support monetary CDA claim. |
| Whether KBR's nonmonetary CDA claim itself provides jurisdiction | Nonmonetary request for government participation is a CDA claim. | Nonmonetary CDA claims are not equivalent to monetary relief in the complaint. | No jurisdiction from nonmonetary CDA claim; the complaint remains monetary in nature but invalid. |
| Whether the complaint states a viable claim for specific performance or declaratory relief | Complaint seeks indemnification; some readings suggest declaratory relief. | FAR 52.250-1 gives the government discretion to participate; no specific performance remedy exists. | No viable specific performance or declaratory relief; court lacks jurisdiction over the pleaded relief. |
Key Cases Cited
- M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010) (monetary claim must be sum certain and certified)
- Ellett Construction Co. v. United States, 93 F.3d 1543 (Fed. Cir. 1996) (implicit request for final decision from CO can satisfy CDA claim)
- Scan-Tech Security, L.P. v. United States, 46 Fed. Cl. 326 (2000) (invoices attached can show implicit CDA claim)
- Hamza v. United States, 31 Fed. Cl. 315 (1994) (implicit final decision context; distinguishable facts required)
- Alliant Techsystems, Inc. v. United States, 178 F.3d 1265 (Fed. Cir. 1999) (whether language requests final decision; lack of explicit CDA label)
- Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d 1107 (Fed. Cir. 2013) (requires sum certain and certification for monetary CDA claim)
- Arctic Slope Native Ass’n v. Sebelius, 583 F.3d 785 (Fed. Cir. 2009) (jurisdictional aspects of CDA presentment)