Kellogg Brown & Root Services, Inc. v. United States

In the United States Court of Federal Claims

No. 13-169 C

(Filed March 7, 2014)

* * * * * * * * * * * * * * * Contract Dispute; 41 U.S.C.

KELLOGG BROWN & ROOT * § 7103 (Supp. V 2011); RCFC

SERVICES, INC., * 12(b)(1); Sharman Analysis –

* Contracting Officer’s Authority

Plaintiff, * to Consider Claims Barred by

* Litigation Pending in This

v. * Court; Failure to Present Claim

* for Sum Certain to Contracting

THE UNITED STATES, * Officer; Failure to Wait Sixty

* Days before Filing Suit under a

Defendant. * Deemed Denial Theory.

* * * * * * * * * * * * * * *

Raymond Biagini, Washington, DC, for plaintiff. Herbert Fenster, Denver,

CO, and Kurt Hamrock, Washington, DC, of counsel.

J.Reid Prouty, United States Department of Justice, with whom were Stuart

F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director,

Washington, DC, for defendant. Alex P. Hontos, United States Department of

Justice, Washington, DC, of counsel.

_______________________

OPINION

_______________________

Bush, Senior Judge.

Before the court is defendant’s fully briefed motion to dismiss, based on

Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC).

Oral argument was held on August 20, 2013; thereafter, supplemental briefing was

permitted.1 For the reasons set forth herein, defendant’s motion to dismiss is

granted.

BACKGROUND2

I. The Contract

The parties refer to the contract at issue in this case, Contract No. DACA63-

03-D-0005, as the Restore Iraqi Oil (RIO) contract. Am. Compl. ¶¶ 8-9.

According to plaintiff, the RIO contract services were provided to the United

States Army Corps of Engineers (the Corps) by Kellogg Brown & Root Services,

Inc. (KBR) in support of Operation Iraqi Freedom, beginning in 2003. Id. ¶¶ 2, 23.

The services “assist[ed] in assessing, refurbishing, and rebuilding the Iraqi oil

infrastructure.” Id. ¶ 8.

II. The Dispute

According to the complaint, the RIO contract included an indemnification

provision against “unusually hazardous” risks in contract performance, as well as

other provisions relevant to plaintiff’s claims in this suit. Am. Compl. ¶¶ 11-13,

19. While working at the Qarmat Ali Water Treatment Plant (Qarmat Ali), KBR

personnel were provided with “force protection” by the government, protection

which involved National Guard personnel and British soldiers. Id. ¶¶ 21, 33.

Sodium dichromate, a potentially hazardous chemical, had been used at Qarmat Ali

and the site may have been contaminated with this chemical. Id. ¶ 31.

After the presence of sodium dichromate was discovered, plaintiff alleges

that KBR was reimbursed for the additional costs of encapsulation of “potential

1

/ Plaintiff’s supplemental brief included a cursory request for a second oral argument

which the court rejects as unnecessary. Pl.’s Supp. Br. at 1-2.

2

/ The facts recounted here are taken primarily from the first amended complaint (Am.

Compl.), with additional facts provided by the parties’ briefs and attachments thereto and, unless

otherwise noted, are undisputed. The court makes no findings of fact in this opinion other than

those necessary to determine this court’s jurisdiction over the complaint. A companion decision

issued earlier today dismissing Kellogg Brown & Root Services, Inc. v. United States, No. 12-

780C (Fed. Cl. Mar. 7, 2014) (KBR I), provides a more detailed discussion of the background

facts relevant to this case. The complaint in KBR I is cited as “780 Compl.”

2

sodium dichromate contamination” at the Qarmat Ali site. Am. Compl. ¶ 31.

Nonetheless, KBR was eventually sued by persons involved in force protection at

Qarmat Ali who claimed that they had been injured from exposure to sodium

dichromate and that KBR was subject to tort liability for those injuries (hereinafter,

the third-party suits). Id. ¶ 33. A dispute arose between KBR and the Corps as to

whether the indemnification provision of the RIO contract required that the

government provide “indemnification for claims asserted by third persons for

personal injury allegedly arising out of risks previously defined as ‘unusually

hazardous’ under Contract No. DACA63-03-D-0005 and that [the Corps] actively

engage in the defense and resolution of certain claims and disputes arising under

the contract.” Pl.’s Resp. Ex. 4 at 1.

III. The December 2010 Claim Was Denied by the Contracting Officer in

November 2011

As discussed more thoroughly in KBR I, a claim was submitted to the

contracting officer (CO) in December 2010, which, when standing alone as well as

when interpreted in light of a June 2011 letter from KBR to the CO, contained

requests for monetary and nonmonetary relief. The claim included a request for

monetary relief, in the form of indemnification for the litigation defense and

settlement expenses of KBR in the third-party suits, as well as a request that the

Corps actively participate in the litigation of the third-party suits against KBR.

These requests for money damages and participation were denied in a November

2011 letter from the CO.

IV. KBR I Was Pending when KBR Submitted Certified Claims to the

Contracting Officer in December 2012 and February 2013

KBR submitted invoices to the Corps in July and August of 2012 for its

litigation expenses in the third-party suits. Am. Compl. ¶ 46. These invoices also

included legal fees and other costs incurred by KBR when responding to a

Department of Defense Inspector General’s investigation of the “alleged sodium

dichromate exposure at Qarmat Ali” and related events (“the IG costs”). Id. ¶¶ 41,

46. The vouchers were not paid. In November 2012, KBR filed suit in this court,

Case No. 12-780C, contesting the denial of the December 2010 claim submitted to

the CO (the 780 suit).

Approximately a month after filing the 780 suit and while the 780 suit was

3

pending, KBR, on December 21, 2012, submitted a certified claim to the

contracting officer for $23,146,997.59, which represented all of KBR’s litigation

expenses in the third-party suits as of that date (the December 2012 claim). Def.’s

Mot. Ex. A; Am. Compl. ¶ 49. However, although the December 2012 claim

specifically alleged KBR’s entitlement to the IG costs, and KBR had attached

copies of unpaid vouchers that included the IG costs, the December 2012 claim did

not include or expressly set forth the IG costs in the quantum of the certified claim.

See Def.’s Mot. Ex. A at 14, 16, 19, 21; id. Ex. B at 16 n.5; Am. Compl. ¶ 52.

While the 780 suit was still pending in this court, on February 21, 2013 KBR

filed a second certified claim with the CO for $23,597,168.27 (the February 2013

claim), which again represented all of KBR’s litigation expenses in the third-party

suits as of that date, but now included the IG costs as well. Am. Compl. ¶ 52. The

increased quantum of $450,170.68 reflects that the February 2013 claim includes

the IG costs and, possibly, two additional months of litigation costs in the third-

party suits. Def.’s Mot. Ex. B at 16 & n.5; Am. Compl. ¶ 52 (stating that “the

February certified claim updated the quantum sought to include outside legal costs

KBR[] incurred in responding to the Department of Defense subpoena [the IG

costs], which had been discussed but not included in the quantum sought in the

December 2012 certified claim”). The proffered reason for the filing of the second

certified claim was that the “instant Claim encompasses the same legal fees and

involves many of the same underlying facts [as the December 2012 claim], but

seeks recovery based on a separate and distinct theory.” Def.’s Mot. Ex. B. at 2;

see Am. Compl. ¶ 52 (“The February certified claim arises from the same set of

operative facts as the December 2012 claim, but was based on [the Corps’] failure

to reimburse KBR[] for its legal costs because of an alleged lack of funding.”).

V. The Contracting Officer Declines to Issue a Decision on KBR’s Certified

Claims, Citing Pending Litigation in This Court; KBR Files Another

Suit in This Court and Later Amends the Complaint

On February 11, 2013, the CO acknowledged receipt of the December 2012

claim, but stated that because the pending 780 suit was “substantially the same” as

the December 2012 claim, he was no longer “the federal authority with respect to

this matter.” Pl.’s Resp. Ex. 2. On March 5, 2013, KBR filed its complaint in this

case, Case No. 13-169C (the 169 suit). On March 29, 2013, the CO acknowledged

receipt of the February 2013 claim, but stated that because the 780 suit and the 169

suit were “substantially the same” as the February 2013 claim, once again he was

4

no longer “the federal authority with respect to this matter.” Pl.’s Resp. Ex. 3.

On April 30, 2013, plaintiff amended the complaint in the 169 suit.3

Although the amended complaint alleges that “[m]ore than 60 days ha[ve] passed

since KBR[] submitted its December 2012 and February 2013 certified claims

without a decision by the CO,” Am. Compl. ¶ 54, this statement, although true, is

somewhat misleading. When the 169 suit was initiated in this court on March 5,

2013, the contracting officer had received the February 21, 2013 claim only twelve

days earlier. Thus, the court’s analysis of its jurisdiction over the 169 suit must

take into account this twelve-day period, as well as the sixty-eight day period

separating the submission of the February 2013 claim to the CO and the filing of

the amended complaint on April 30, 2013. The court reserves a more thorough

discussion of KBR’s claims, and defendant’s challenge to this court’s jurisdiction

over those claims, for the analysis section of this opinion.

DISCUSSION

I. Standard of Review for a Motion to Dismiss for Lack of Jurisdiction

In rendering a decision on a motion to dismiss for lack of subject matter

jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed

factual allegations to be true and construe all reasonable inferences in favor of the

plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other

grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army

& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Nonetheless,

plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace,

Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen.

Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a

preponderance of the evidence, Reynolds, 846 F.2d at 748. When,

as here, jurisdictional facts are challenged, the court may weigh the evidence

presented and may make findings of fact pertinent to its jurisdiction. See, e.g.,

Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) (“A trial court may

weigh relevant evidence when it considers a motion to dismiss that challenges the

truth of jurisdictional facts alleged in a complaint . . . .”) (citations omitted).

3

/ As stated above, the court cites to the amended complaint as “Am. Compl.”; the

original complaint in this case is cited as “Compl.” See supra note 2.

5

Plaintiff’s burden, in this circumstance, is to establish jurisdiction by

competent proof. McNutt, 298 U.S. at 189. The court’s fact-finding in this regard

is not limited to the pleadings. E.g., Rocovich v. United States, 933 F.2d 991, 994

(Fed. Cir. 1991) (citations omitted); Reynolds, 846 F.2d at 747. If jurisdiction is

found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

II. Pertinent Jurisdictional Requirements of the Contract Disputes Act

The Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109 (Supp.

V 2011), is a money-mandating source of law sufficient to confer jurisdiction in

this court under the Tucker Act, 28 U.S.C. § 1491 (2012). See 28 U.S.C.

§ 1491(a)(2) (citing 41 U.S.C. § 7104(b)(1)); Salt River Pima-Maricopa Indian

Cmty. v. United States, 86 Fed. Cl. 607, 616 (2009) (citations omitted). For this

court to take jurisdiction over a CDA claim, however, the contractor must have

first presented a written claim to the contracting officer. 41 U.S.C. § 7103(a)(1)-

(2); see, e.g., M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328

(Fed. Cir. 2010) (M. Maropakis) (stating that “for the Court of Federal Claims to

have jurisdiction under the CDA, the contractor must submit a proper claim – a

written demand that includes (1) adequate notice of the basis and amount of a

claim and (2) a request for a final decision”). For monetary claims, the contractor

must state the “sum certain” of its claim. M. Maropakis, 609 F.3d at 1329. The

contractor must submit the claim to the contracting officer within six years after

the accrual of the claim. 41 U.S.C. § 7103(a)(4).

Both the presentment requirement and the six-year limitations period for the

submission of CDA claims are deemed to be jurisdictional requirements for the

litigation of CDA claims in this court. See, e.g., Arctic Slope Native Ass’n v.

Sebelius, 583 F.3d 785, 793 (Fed. Cir. 2009) (stating that “the timely submission of

a claim to a contracting officer is a necessary predicate to the exercise of

jurisdiction by a court or a board of contract appeals over a contract dispute

governed by the CDA”). For claims that exceed $100,000, a further jurisdictional

requirement is that the claim presented to the contracting officer be certified by the

contractor. 41 U.S.C. § 7103(b)(1); Northrop Grumman Computing Sys., Inc. v.

United States, 709 F.3d 1107, 1112 & n.3 (Fed. Cir. 2013) (Northrop Grumman

Computing). An additional requirement for a CDA claim filed in this court is that

the suit be filed within one year of the contractor’s receipt of the final decision

issued by the contracting officer on that claim. See 41 U.S.C. § 7104(b)(3); Renda

6

Marine, Inc. v. United States, 509 F.3d 1372, 1380 (Fed. Cir. 2007).

III. Analysis

A. The Monetary Claim in the 780 Suit Is the Same as All But One of

the Claims in the December 2012 and February 2013 Claims

Presented to the Contracting Officer, Depriving This Court of

Jurisdiction over These Claims

1. Sharman

Both parties rely, as they must, on Sharman Co. v. United States, 2 F.3d

1564 (Fed. Cir. 1993), overruled in part on other grounds by Reflectone, Inc. v.

Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en banc), for its precedential analysis of the

effect of pending litigation on a CDA claim presented to a contracting officer. The

key passage in Sharman states that

[o]nce a claim is in litigation, the Department of Justice

gains exclusive authority to act in the pending litigation.

That exclusive authority divests the contracting officer of

his authority to issue a final decision on the claim.

2 F.3d at 1571-72 (citations omitted). Thus, a suit predicated on the final decision

of such a claim submitted to a contracting officer, or the deemed denial of such a

claim presented to a contracting officer,4 is not properly before this court because

the contracting officer’s final decision or deemed denial of the claim would be a

4

/ A deemed denial occurs when the contracting officer has failed to render a decision on

a valid claim within sixty days; thus, after sixty days have elapsed with no decision on such a

claim by a contracting officer, the claimant may appeal the deemed denial to a board of contract

appeals or this court. 41 U.S.C. § 7103(f). Plaintiff’s 169 suit is premised on deemed denials of

the December 2012 and February 2013 claims, Am. Compl. § 54; Pl.’s Resp. at 1, 5, although, as

noted supra, only twelve days separated the submission of the February 21, 2013 claim and the

filing of this suit.

7

“nullity.” Id. at 1572; see Case, Inc. v. United States, 88 F.3d 1004, 1009 (Fed.

Cir. 1996) (stating that “when a contracting officer lacks authority to issue a final

decision on a claim, there can be no valid deemed denial of the claim so as to

confer CDA jurisdiction” on this court). Yet, for the Sharman jurisdictional bar to

apply, the claim in the pending litigation must be the “same claim” or “effectively

the same claim” as the claim submitted to the contracting officer. Sharman, 2 F.3d

at 1570.

2. The Proper Test for Claims Barred by Sharman

The breadth or narrowness of the Sharman jurisdictional bar is disputed by

the parties. According to plaintiff, relying principally on Case, only “mirror

image” claims or “identical” claims qualify as the same claims for Sharman

purposes and fall prey to the bar. Pl.’s Resp. at 6-8. According to defendant,

relying principally on Scott Timber Co. v. United States, 333 F.3d 1358 (Fed. Cir.

2003), and K-Con Building Systems, Inc. v. United States, 107 Fed. Cl. 571 (2012),

claims which “‘arise from the same operative facts [and] claim essentially the same

relief’” are the same claim for Sharman purposes. Def.’s Mot. at 6 (quoting Scott

Timber, 333 F.3d at 1365, and citing K-Con, 107 Fed. Cl. at 592). Although KBR

cites two decisions of this court which appear to adopt plaintiff’s strict and narrow

definition of the “same claim” in the Sharman context, Pl.’s Resp. at 8 (citing

Extreme Coatings, Inc. v. United States, No. 11-895C, 2012 WL 4747248, at *3

(Fed. Cl. Oct. 3, 2012), and Buse Timber & Sales, Inc. v. United States, 45 Fed. Cl.

258, 266 (1999)), the court is persuaded that Sharman, Case, and Scott Timber are

correctly interpreted in this court’s K-Con decision. The proper focus, in a

Sharman analysis, is on operative facts and the relief sought so as to determine

whether a CDA claim is the same as another. This view is supported by Sharman,

Case, and Scott Timber and a number of other precedential decisions from the

United States Court of Appeals for the Federal Circuit.

a. The Framing of the “Same Claim” Test in Sharman

and Case

Sharman provides no explicit guidance as to the breadth or narrowness of

the terms “same claim” or “effectively the same claim.” 2 F.3d at 1570. The case

8

citations in Sharman are of some help, however. One of the cases relied upon by

the Federal Circuit in Sharman for its holding that pending litigation may divest

the contracting officer of the authority to decide a CDA claim is Durable Metal

Products, Inc. v. United States, 21 Cl. Ct. 41 (1990). 2 F.3d at 1571-72 (citing

Durable Metal, 21 Cl. Ct. at 46). The Durable Metal decision noted that this court

may issue a decision on fewer than all of the claims presented in a CDA suit,

relying on a provision of the CDA now codified at 41 U.S.C. § 7107(3). 21 Cl. Ct.

at 46. In the circumstances of that case, the court declined to do so, however,

“since none of [the] plaintiff’s claims [we]re fully developed to the extent that any

one claim could logically and reasonably be separated from another.” Id.

Thus, although there is no indication that the Federal Circuit in Sharman

relied on this particular commentary in Durable Metal, it is evident that claims

which can be logically separated from other claims are not necessarily the “same

claim.” See Case, 88 F.3d at 1010 (holding that the claims in that dispute were not

the same because they were “separate and distinct”). Conversely, a claim which

cannot logically be separated from another claim may, indeed, be the same claim.

See Sharman, 2 F.3d at 1571 (noting that the claims at issue in that dispute were

the same because they “allege[d] entitlement to the same money based on the same

partial performance, only under a different legal label”). The court turns now to

Hughes Aircraft Co. v. United States, 534 F.2d 889 (Ct. Cl. 1976), the other case

cited in Sharman, for its analysis of the effect of pending litigation on the authority

of a government agency to render decisions.

In Hughes Aircraft the government argued that pending litigation in a federal

court had removed the authority of an executive agency to render a decision on an

arguably related matter before the agency. 534 F.2d at 901. The Federal Circuit

disagreed, noting that the pending litigation, at the time the disputed agency action

was taken, only encompassed matters related to the Skynet II F1 satellite, not the

Skynet II F2 satellite. Id. at 901-02. Because the agency’s decision primarily

related to the Skynet II F2 satellite, and because the pending litigation at that time

contained no allegations regarding matters related to that Skynet II F2 satellite, the

agency’s authority to make the decision regarding the Skynett II F2 satellite had

not been removed from the agency and transferred to the Department of Justice.

Id. Thus, in Hughes Aircraft, because the claim in the pending litigation addressed

different disputed government actions, the agency was not divested of authority to

9

render a decision in a related but separate matter. Id. Despite the fact that it is not

a CDA case, Hughes Aircraft stands for the proposition that related but separate

matters do not constitute the same claim for purposes of the Sharman jurisdictional

bar.

As the court reads the Case decision, the test applied there is no different

than the one applied in Sharman. Although plaintiff suggests that Case “closely

construed” Sharman, Pl.’s Resp. at 7, Case focused on whether claims are

“separate and distinct,” 88 F.3d at 1010; whether claims constitute “‘divisible’”

parts of a case, id. (citing Joseph Morton Co. v. United States, 757 F.2d 1273, 1281

(Fed. Cir. 1985)); and, of most practical use to a trial court, whether the specific

facts that provide the “grounds” for the claims, as well as the specific monetary

relief requested in the claims, are different, id. This test is in no way at odds with

the analysis applied in Sharman. Further, although this test for identifying the

“same claims” is indisputably characterized as “narrow[]” by the Federal Circuit,

Case, 88 F.3d at 1011, the test is nowhere near as narrow as the “identical” or

“mirror image” test proposed by plaintiff here. Indeed, as defendant notes,

plaintiff’s allegation that claims must be “identical” to be the same claim, for the

purposes of the Sharman inquiry, is nowhere expressed in Case.

b. K-Con Applies Scott Timber to the Sharman Inquiry

Having discerned that Case reviewed the factual “grounds” of the claims and

the monetary relief sought to identify any claims that would be the “same” and thus

barred by the Sharman jurisdictional test, it is no surprise, then, that this court in

K-Con adopted Scott Timber’s definition of “same claim” containing elements

indistinguishable from those employed in Case:

Thus, if a contractor submits a new claim to the

contracting officer while its prior claim is in litigation,

and the new claim “arise[s] from the same operative

facts, claim[s] essentially the same relief, and merely

assert[s] differing legal theories for that recovery,” Scott

Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed.

Cir. 2003), the contracting officer lacks the authority to

10

act on the new claim.

107 Fed. Cl. at 592. All elements of the Scott Timber test reflect the test used in

Sharman and Case. See Case, 88 F.3d at 1010 (distinguishing between different

claims sharing the “same underlying facts,” which are mere background facts, and

the same claims which share the “grounds actually asserted” to support claims,

which are operative facts); id. (noting that the claim in the pending litigation

identified $2.8 million as monetary relief, whereas the claim later presented to the

contracting officer sought recovery “over and above” the amount sought in the

pending litigation of an additional $1.8 million); Sharman, 2 F.3d at 1571 (finding

claims to be the same despite the use of “different legal label[s]”). This court thus

endorses the test for identifying the “same claim” set forth in Scott Timber and

adopted by K-Con for use in the Sharman inquiry.

c. Other Federal Circuit Decisions Address the “Same

Claim” Issue in Various CDA Contexts by Discussing

Operative Facts in a Manner Consistent with Scott

Timber

The need to determine whether a CDA claim is the same as another arises in

a variety of contexts. It is not necessary for the purposes of this opinion to

examine those contexts in detail. The court notes, simply, that the inquiry

commonly focuses on whether the operative facts are the same in two or more

CDA claims.

For example, in determining whether claims were distinct and separate, or

unitary (all part of the same claim), the Federal Circuit stated:

Because the Claims Court did not base its analysis on

whether the claims presented to the CO arose from a

common or related set of operative facts, and the

government has not cited support in the record that only a

unitary claim exists, we remand for the Claims Court to

conduct fact finding consistent with this opinion.

11

Placeway Constr. Corp. v. United States, 920 F.2d 903, 908 (Fed. Cir. 1990). In

another context, to determine whether a CDA claim has been improperly split and

the second CDA claim is barred by res judicata principles, this court must examine

whether “[t]he two claims plainly are based on a single set of operative facts.”

Phillips/May Corp. v. United States, 524 F.3d 1264, 1272-73 (Fed. Cir. 2008). In

yet another context, a claim was determined to be new, not the same, because “a

profound alteration occurred in the scope of th[e] claim,” expanding the focus on

operative facts from three change orders to a “multiplicity of change orders.”

Santa Fe Eng’rs, Inc. v. United States, 818 F.2d 856, 859 (Fed. Cir. 1987). All of

these cases show the Federal Circuit’s consistent approach in determining whether

one CDA claim is the same as another. Following these cases, as well as Sharman,

Case, Scott Timber and K-Con, this court must examine the operative facts and

relief sought in the two CDA claims, not the legal labels placed on those claims, to

determine whether those two CDA claims are the same.

3. The Same Operative Facts and Essentially the Same

Requests for Relief Are Found in the Monetary Claim in

KBR’s 780 Suit and in the December 2012 and February

2013 Claims

Although the monetary claim presented in the 780 suit is evident throughout

the complaint filed in that case, the most succinct expression of that monetary

claim is found in this statement:

KBR[] is entitled to recover all such fees, costs, and other

related expenses in connection with its defense of the

various third-party [suits] arising from its work under the

RIO contract, including these and other such fees, costs,

expenses, and other monetary liabilities that may be

incurred in the future.

780 Compl. ¶ 37. The operative facts for such a claim are not hard to discern. The

costs incurred by KBR in the third-party suits must arise from its work at the

Qarmat Ali plant and the presence of sodium dichromate at the site, and the

government must have refused to reimburse KBR for these costs. Here, the same

12

operative facts underlie the December 2012 and February 2013 claims presented to

the CO. See Def.’s Mot. Exs. A-B. Further, the 780 suit as well as the December

2012 and February 2013 CDA claims sought essentially the same monetary relief,

i.e., incurred and future costs of the third-party suits against KBR. Under the

precedent discussed supra, pending litigation before this court contained the same

claims as those presented to the CO in 2012 and 2013, and he therefore had no

authority to consider those claims. Lacking a final CO decision or a valid deemed

denial of KBR’s December 2012 and February 2013 claims, this court lacks

jurisdiction over all of the claims (save one discussed infra) in the 169 suit due to

the jurisdictional bar explained in Sharman.

Plaintiff’s reliance on Case to avoid the jurisdictional bar is misplaced. In

Case the claims were not the same because they were “separate and distinct.” 88

F.3d at 1010. Different government actions were addressed in the claims (default

termination in one, failure to issue an equitable adjustment of the contract in the

other), and the monetary relief requested was distinct. Id. at 1010-11. Here, in

contrast, the presence of sodium dichromate at Qarmat Ali and the government’s

failure to reimburse KBR for the costs of the third-party suits is the focus of both

suits, and the monetary relief requested is the same.5

The only distinction between the pending litigation (the 780 suit) and the

December 2012 and February 2013 claims submitted to the CO and at issue in this

case are the legal labels placed on the claims. In the 780 suit, KBR relied

exclusively on the indemnification provision in the RIO contract. That same

provision is just one of several bases for recovery cited in the December 2012 and

February 2013 claims submitted to the CO. These later claims also alleged

violations of certain Federal Acquisition Regulation (FAR) provisions including

FAR 52.216-7 and FAR 52.228-7, breach of the obligation to provide KBR with a

“benign” work environment, and breach of the obligation to ensure that adequate

funding is available to pay for services provided under the contract. Yet, as noted

in Sharman, a “different legal label” does not transform the same CDA claim into a

5

/ Increases in the amount of a claim due to the mere passage of time do not generally

change a CDA claim into a new claim. See, e.g., Contract Cleaning Maint., Inc. v. United

States, 811 F.2d 586, 591 (Fed. Cir. 1987) (citing Tecom, Inc. v. United States, 732 F.2d 935,

937-38 (Fed. Cir. 1984)).

13

new claim. 2 F.3d at 1571.

Following Sharman, Case, Scott Timber and K-Con, the monetary claim in

this suit (except for a small portion discussed infra) must be dismissed because the

same claim was pending in the 780 suit when the December 2012 and February

2013 claims were submitted to the CO.6 The court now turns to the one arguably

“new” claim presented in the December 2012 and February 2013 certified claims

submitted to the CO – the IG costs claim.

B. The IG Costs Claim, although Similar in Nature to the Costs of

Defending the Third-Party Suits, Is Not Necessarily Barred by the

Sharman Doctrine, But Is Certainly Barred by the Failure to State

a Sum Certain in the December 2012 Claim

There is no mention of an IG costs claim in the 780 suit, nor are the costs of

responding to an IG investigation necessarily subsumed within the costs of

responding to the third-party suits against KBR. The December 2012 certified

claim clearly attempts to present a claim for IG costs. Def.’s Mot. Ex. A at 14, 16,

19, 21, 29. No dollar amount was set forth therein for the IG costs, although the IG

costs claim appears to constitute a substantial portion, if not the entirety, of the

$450,170.68 omitted from the December 2012 certified claim. Id. Ex. B at 16 &

n.5; Am. Compl. ¶ 52. Applying a narrow interpretation of the jurisdictional bar

described in Sharman and Case, plaintiff’s IG costs claim does not appear to have

been “in litigation,” Case, 88 F.3d at 1011, when the December 2012 claim was

presented to the CO.

The court notes, however, that a contrary conclusion is possible. Plaintiff’s

IG costs, and its third-party suit costs, both arise from KBR’s work at Qarmat Ali

and the presence of sodium dichromate at the site. KBR combined in the same

invoices its costs from the third-party suits and the IG investigation. Am. Compl. ¶

46; Def.’s Mot. Ex. A at 16. These legal costs were incurred contemporaneously

6

/ The court need not reach defendant’s additional jurisdictional argument that any

breach of contract claim related to the government’s alleged failure to provide benign site

conditions at Qarmat Ali is also barred by the CDA’s six-year statute of limitations.

14

and are closely related.

In light of the foregoing, whether KBR’s IG costs claim is truly “separate

and distinct” from its third-party suit expenses claim, Case, 88 F.3d at 1010,

presents a close question. Certainly, the contrast between KBR’s legal fees

incurred in responding to the IG investigation and KBR’s legal fees incurred in

responding to the third-party suits is minimal when compared to the “separate and

distinct” claims discussed in Case. See 88 F.3d at 1010-11 (contrasting a claim

disputing a default termination, asserting that a delivery schedule was unreasonable

and waived, with a claim requesting an equitable adjustment of the contract price,

asserting defective specifications and overly strict government inspection). One

possibly determinative factor is that KBR’s IG costs claim requests a separate

amount of money that was not clearly included in the 780 suit. For this reason, the

court finds that the Sharman analysis does not necessarily bar plaintiff’s IG costs

claim in the instant suit.

Surviving the Sharman analysis provides little benefit to plaintiff, however,

because KBR’s IG costs claim cannot be considered by this court for a different

reason. The IG costs claim in the December 2012 certified claim presented to the

CO failed to present a sum certain for IG costs. See Am. Compl. ¶ 52; Def.’s Mot.

Ex. B at 16 n.5. Failure to present a monetary claim for a sum certain to the CO

renders a claim invalid and beyond this court’s jurisdiction. See M. Maropakis,

609 F.3d at 1329. Accordingly, KBR’s monetary claim for IG costs presented in

the December 2012 claim must also be dismissed.7

C. The IG Costs Claim in the February 2013 Claim, and Every

Other Claim in the February 2013 Claim, Are Barred by KBR’s

Failure to Await a Deemed Denial before Filing Suit in This Court

7

/ Although the record before the court is not sufficiently detailed to conclusively decide

whether the IG costs claim in the December 2012 claim was large enough to require

certification, failure to certify the IG costs claim, unless cured, might provide an independent

reason to deprive this court of jurisdiction over the KBR’s IG costs claim in the December 2012

submission to the CO. See 41 U.S.C. § 7103(b); Northrop Grumman Computing, 709 F.3d at

1112 & n.3; M. Maropakis, 609 F.3d at 1329.

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Finally, the court must conclude that the February 2013 certified claim does

not save KBR’s IG costs claim. As noted supra, the instant suit was filed on

March 5, 2013, only twelve days after the February 2013 claim was submitted to

the CO. No final decision was issued on the February 2013 claim. No deemed

denial of the February 2013 claim could have occurred before April 2013. See 41

U.S.C. § 7103(f). Thus, the IG costs claim, as well as the other claims in the

February 2013 certified claim, were filed before a deemed denial would permit an

appeal of the CO’s “decision” in this court. E.g., Mendenhall v. United States, 20

Cl. Ct. 78, 84 (1990); Claude E. Atkins Enters. v. United States, 15 Cl. Ct. 644, 646

(1988). As this court has explained,

a claim premature for lack of a contracting officer’s final

decision does not ripen into a mature claim, while suit is

pending, with the passage of sixty (60) days. Once

plaintiff’s claim . . . became the subject of litigation in

this court, upon the filing of the original complaint, the

authority to resolve that claim was withdrawn from the

contracting officer and resided within the exclusive

authority of the Attorney General . . . . Under these

circumstances, plaintiff’s claim . . . cannot be deemed

denied, and the court must dismiss [this claim] on

jurisdictional grounds for lack of a contracting officer’s

final decision.

Sipco Servs. & Marine Inc. v. United States, 30 Fed. Cl. 478, 485 (1994) (citations

omitted).

Furthermore, plaintiff may not rely on its amended complaint to cure any

jurisdictional defect in its premature appeal of a “deemed denial” of the February

2013 claim. Am. Compl. ¶ 54; Pl.’s Resp. at 5. The general rule is that

“jurisdiction must be determined” at the time the original complaint was filed.

Sharman, 2 F.3d at 1569, 1571 n.10. An exception to this rule, that jurisdiction

over new claims introduced into a CDA suit by an amended complaint is

determined as of the time of the filing of the amended complaint, Buse Timber, 45

Fed. Cl. at 266 (citing Sharman, 2 F.3d at 1569-72, and Sipco, 30 Fed. Cl. at 485),

is inapplicable here.

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There is no new claim in the April 30, 2013 amended complaint that was not

presented in the March 5, 2013 complaint filed in this court in the 169 suit; the

principal difference between the complaints is the addition of a “different legal

label,” Sharman, 2 F.3d at 1571, to support KBR’s recovery in this suit. The court

notes, in particular, that the IG costs claim is presented in both the March 5, 2013

complaint and in the amended complaint. Compare Compl. ¶¶ 38, 43, 62, with

Am. Compl. ¶¶ 41, 46, 70. Because the amended complaint did not introduce a

new claim into the 169 suit, the time of filing of the amended complaint has no

bearing on whether a deemed denial of the February 2013 claim had occurred

before plaintiff filed suit in this court. Because no deemed denial of the February

2013 certified claim had occurred before the filing of the 169 suit, this court has no

jurisdiction over the IG costs claim, or any other claim, in the February 2013

certified CDA claim presented to the CO.

CONCLUSION

For the foregoing reasons, the court lacks jurisdiction over all of the claims

in the amended complaint and it is hereby ORDERED that

(1) Defendant’s Motion to Dismiss, filed May 22, 2013, is GRANTED;

(2) The Clerk’s Office is directed to ENTER final judgment in favor of

defendant DISMISSING plaintiff’s amended complaint for lack of

subject matter jurisdiction, without prejudice; and

(3) Each party shall bear its own costs.

/s/ Lynn J. Bush

LYNN J. BUSH

Senior Judge

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