Contractor Only Needs to Appeal a Final Decision to Perfect Appeal—Appealing Claims Made Within the Decision Is Unnecessary; Appeals of Kellogg Brown & Root Services, Inc. ASBCA Nos. 62681, 62843, 62844

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Government’s motion to dismiss appeals is denied. The contractor appealed government claims. The government argued that one of the appeals was defective because it did not specifically appeal the government’s claims. The board, however, found that an appeal only needs to appeal a decision; it does not need to appeal specific claims. The government argued that another appeal was void because it only appealed government demand letters, not a final decision. The demand letters, however, asserted a right to recovery and sums certain. They were final decisions that could be appealed.

Background

Kellogg Brown & Root Services (KBR) had a contract with the Army Corps of Engineers to construct a missile defense site in Romania. After finishing the work, KBR submitted a claim to the Corps seeking delay costs. 

The Corps denied the claim. In the decision, the Corps stated that KBR actually owed the government money for failure to substantiate delay. The decision stated that the government might seek recoupment and reserved the right to collect liquidated damages. KBR appealed that decision to the ASBCA in July 2020.

While that appeal was pending, the government sent demand letters to KBR seeking a recruitment and liquidated damages. Believing the demand letters asserted government claims, KBR filed additional appeals with the ASBCA in March 2021.

The government moved to dismiss all the appeals. The government argued that the July 2020 appeal failed to specifically state that KBR intended to appeal the government’s claims. The government further argued that the March 2021 appeals of the demand letters failed because the letters were not a contracting officer’s final decision.

Legal Analysis

  • KBR Didn’t Need to State It Intended to Appeal the Government’s Claims – The Corps contended that KBR’s July 2020 appeal was defective because it failed to specifically plead an appeal of the government’s recoupment and liquidated damages claims. The board rejected this argument. The CDA only requires appeal of a “decision;” it does not require the contractor to appeal claims within the decision. The notice of appeal need only identify the contract number, the agency, the decision being appealed, and the amount. KBR’s July 2020 complied with these minimal requirements.
  • The Demand Letters Were Government Claims – The Corps attempted to argue that it had not yet made a formal claim for recoupment and liquidated damages. The board reasoned that while the initial July 2020 may not have been a formal claim, the subsequent demand letters were claims. While they were not styled as a claim, the letters made unequivocal demands for a sum certain.

KBR is represented by Daniel J. Kraftson, Sean M. Howley, and Jonathan J. Straw of Kraftson Caudle PLC. The government is represented by Michael P. Goodman, Paul L. Huhtanen, Hebert J. Aldridge, Paul Cheverie, and LuzDanielle O. Bolong of the Army Corps of Engineers.

62681 Kellogg Brown & Root Services, Inc. 11.24.21 Decision