Kellogg Brown & Root Services, Inc. v. United States
117 Fed. Cl. 764
| Fed. Cl. | 2014Background
- KBR challenges a government request for a firm-fixed-price closeout proposal under LOGCAP III, alleging a new procurement and violations of statute or regulation in connection with a procurement.
- LOGCAP III closed out without a final closeout agreement by December 2011; subsequent closeout work was paid under Task Order 160 amendments for a separate program office.
- GAO dismissed KBR’s pre-award protest as contract administration, not a bid protest; Army extended a deadline for closeout proposal but KBR did not submit one.
- KBR asserts the action involves a new procurement and seeks declaratory and injunctive relief to require funding and restrict further solicitations.
- The government moves to dismiss for lack of subject-matter jurisdiction, arguing the case is contract administration under the CDA, not a bid protest, and KBR lacks standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action is a bid protest under ADRA §1491(b)(1). | KBR argues it challenges a new procurement solicitation. | Case concerns contract administration, not a new procurement; CDA applies. | Not a bid protest; CDA applies. |
| Whether the court has jurisdiction under the CDA for contract administration disputes. | Implied-in-contract theories preserve jurisdiction under §1491(b)(1). | Dispute concerns closeout and amendments, within CDA procedures. | CDA governs; lack of CDA processing defeats jurisdiction. |
| Whether KBR has standing as an interested party with a non-trivial competitive injury. | KBR contends potential competitive injury or direct economic interest. | No competitive injury since KBR is the sole source for closeout services. | No standing; injury not the type required for bid protests. |
| Whether the ten-year limit on task orders has retroactive effect on LOGCAP III. | Ten-year limit may apply retroactively under Landgraf. | No clear retroactive intent; closeout is not a new procurement. | Not retroactively applied; irrelevant to proceeding. |
Key Cases Cited
- AFGE v. United States, 258 F.3d 1294 (Fed. Cir. 2001) (interested party standing mirrors CICA standing principles)
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (non-frivolous injury required for bid protest standing)
- Todd Constr., L.P. v. United States, 656 F.3d 1306 (Fed. Cir. 2011) (FAR-based claim definition; CDA framework for contract disputes)
- Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008) (procurement defined to end at contract completion and closeout)
- Outdoor Venture Corp. v. United States, 100 F. Cl. 146 (2011) (contract awardees generally cannot protest other than under CDA)
- Data Monitor Sys., Inc. v. United States, 74 Fed. Cl. 66 (2006) (persuasive authority on bid protests and jurisdiction)