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

In the United States Court of Federal Claims

No. 12-780 C

(Filed March 7, 2014)

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

KELLOGG BROWN & ROOT *

SERVICES, INC., *

* Contract Dispute; 41 U.S.C. §

Plaintiff, * 7103 (Supp. V 2011); RCFC

* 12(b)(1); Presentment, Sum

v. * Certain and Certification

* Requirements.

THE UNITED STATES, *

*

Defendant. *

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

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

granted.1

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. Compl. ¶ 3; Def.’s Mot. at 1;

Pl.’s Resp. at 2. 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.

Compl. ¶¶ 3, 6; Pl.’s Resp. at 2. The services “assist[ed] in assessing,

refurbishing, and rebuilding the Iraqi oil infrastructure.” Compl. ¶ 3.

II. The Dispute

According to the complaint, the RIO contract included an indemnification

provision against “unusually hazardous” risks in contract performance. Compl.

¶ 4. 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. ¶¶ 6-7.

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

Ali and the site may have been contaminated with this chemical. Id. ¶ 6.

KBR was eventually sued (hereinafter, the third-party suits) by persons

involved in force protection at Qarmat Ali who claimed that they had been injured

by exposure to sodium dichromate and that KBR was subject to tort liability for

those injuries. Id. ¶ 7. A dispute arose between KBR and the Corps as to whether

the indemnification provision of the RIO contract required the government to

“directly participate in the lawsuits and/or assume direct responsibility for their

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 complaint, with additional facts

provided by the parties’ briefs and attachments thereto. The court makes no findings of fact in

this opinion other than those necessary to resolve defendant’s jurisdictional challenge to the

complaint. Unless otherwise noted, the facts are undisputed.

2

defense as provided by the terms of the indemnification agreement.” Id. ¶ 8. The

parties disagree as to whether KBR submitted a proper claim to the contracting

officer (CO) regarding this dispute.

III. The Alleged Claim

No copy of the “claim” presented to the CO by KBR is attached to the

complaint. The complaint is vague as to the timing of the filing of a “claim” with

the CO, and as to the specific content of any written document that might have

been provided to the CO in that regard. See Compl. ¶ 8 (stating that after the

lawsuits against KBR had been filed, KBR “subsequently submitted a request to

the . . . contracting officer”), ¶ 9 (stating that KBR and the CO “exchanged

correspondence”), ¶ 19 (alleging that the CO responded on April 6, 2011 to KBR’s

“initial request”), ¶ 22 (stating that KBR provided explanatory information to the

CO on June 9, 2011), ¶ 31 (noting simply that KBR “submitted its request” to the

CO). There is, furthermore, no allegation in the complaint that KBR submitted a

written claim alleging that a sum certain was due KBR under the contract, that

KBR certified the amount of any such sum certain, or that KBR was requesting a

final decision of the CO on such a certified claim.

IV. The Alleged Final Decision on the Claim

The complaint references two communications from the CO which are

described, to some degree, as denials of KBR’s “claim.” Compl. ¶¶ 21, 23. The

first was sent on April 6, 2011, when the CO is alleged to have:

declined to participate directly in these lawsuits [against

KBR] and/or assume direct responsibility for their

defense[;]

[a]cknowledg[ed] that KBR[] operated under “less than

ideal conditions,” [but] determined that “any litigation

costs that [KBR] incurs as a result of this litigation are

not covered by the indemnity agreement[]”[;] . . .

requested additional information from KBR[] such as

copies of the underlying complaints and

3

insurance-related information so that [the Corps] could

“evaluate any potential settlement and the risk of

litigation.”

Id. ¶¶ 19-21. The second communication was sent on November 18, 2011, when

the CO, after considering additional information provided by KBR, is alleged to

have “finally denied KBR[]’s request that the government comply with its

obligations under the indemnification agreement.” Id. ¶ 32; see also id. ¶ 23

(stating that the “November 18, 2011 letter den[ied] KBR[]’s request for

indemnification of the third-party claims”). Both letters from the CO, one sent on

April 6, 2011 and the other sent on November 18, 2011, suggested that KBR

might “choose to file a claim under the Contract Disputes Act for its costs of

defense [of the third-party suits] and any resulting judgment or settlement.” Def.’s

Mot. Ex. B at 1; see also id. Ex. D at 2 (same). The court reserves further

discussion of the factual background of this case 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 must weigh the evidence

presented and must 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).

4

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); see also

Compl. ¶ 12. For this court to exercise 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”). 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

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

5

III. Analysis

A. The Indemnification Provision

1. The Content of the Indemnification Clause

Plaintiff alleges, and there appears to be no dispute, that an indemnification

clause was incorporated by reference into the RIO contract. See, e.g., Pl.’s Supp.

Br. Ex. A-1 at 27. The totality of the text of the clause (and, specifically, of an

important definition referenced in that clause) can only be discerned, however,

from correspondence quoting portions of the contract documents and by reference

to the Federal Acquisition Regulation (FAR).3 This may be because portions of

“[t]he actual terms of the indemnification provision are [or were] classified as

‘SECRET.’” Compl. ¶ 4. Nevertheless, for purposes of the jurisdictional dispute

now before the court, we need only refer to the publicized FAR provisions which

describe the term “indemnification” – especially FAR 52.250-1 Alt. 1 (hereinafter

FAR 52.250-1). Because the meaning of the term “indemnification,” as used in

this case, is disputed, see Def.’s Supp. Br. at 3-4, the court provides an overview

of the RIO contract’s indemnification provision.

Under the authority of Public Law 85-804, 72 Stat. 972 (1958), codified at

50 U.S.C. §§ 1431-1435 (2006), certain emergency measures may be included in

government contracts. At issue here is FAR 52.250-1, titled “Indemnification

under Public Law 85-804.” See Pl.’s Supp. Br. Ex. A-1 at 27; see also FAR

50.104-4; FAR 52.250-1. Insertion of this particular indemnification clause in a

government contract requires a formal request from the contractor and a formal

authorization by the government in a Memorandum of Decision. See FAR 50.104-

3. It is not necessary to reproduce here every provision of FAR 52.250-1 and

related regulations, but the regulatory provisions set forth below are relevant to the

dispute at hand.

3

/ All citations to FAR provisions are to the current versions found in Title 48 of the

Code of Federal Regulations. Although amendments since 2003 have occurred in these and

related provisions, these amendments largely concern the outline structure of the regulations, not

the content.

6

Indemnification by the government in this case addresses the government’s

responsibility vis-à-vis the contractor’s liability for certain risks encountered

during contract performance:

[T]he Government shall, subject to the limitations

contained in the other paragraphs of this clause,

indemnify the Contractor against –

(1) Claims (including reasonable expenses of litigation

or settlement) by third persons (including employees of

the Contractor) for death; personal injury; or loss of,

damage to, or loss of use of property . . . .

FAR 52.250-1(b). Not every risk is covered by the indemnification clause – only

“unusually hazardous or nuclear” risks are covered by the clause. FAR 52.250-

1(c). Furthermore, the authorizing official must approve and incorporate into the

contract a definition, particular to that contract and agreed to by the parties, of

unusually hazardous risks. FAR 50.104-3(b)(1)(ii), (b)(3). Thus, one limitation

on the scope of the government’s indemnification is that “[t]his indemnification

applies only to the extent that the claim, loss, or damage . . . arises out of or results

from a risk defined in this contract as unusually hazardous or nuclear.” FAR

52.250-1(c).

Another significant limitation on the scope of the government’s

indemnification responsibilities regards the contractor’s insurance coverage:

This indemnification applies only to the extent that the

claim, loss, or damage . . . is not compensated for by

insurance or otherwise. Any such claim, loss, or

damage, to the extent that it is within the deductible

amounts of the Contractor’s insurance, is not covered

under this clause. If insurance coverage or other

financial protection in effect on the date the approving

official authorizes use of this clause is reduced, the

Government’s liability under this clause shall not

increase as a result.

7

FAR 52.250-1(c). There are reporting requirements under these regulations

regarding the contractor’s insurance coverage, FAR 50.104-3(a)(1)(iii)-(vi), (a)(2),

and provisions governing the reimbursement of certain insurance expenditures by

the contractor, FAR 52.250-1(i). Thus, the contractor’s insurance coverage may

also affect the scope of the government’s indemnification responsibilities under

the clause.

Finally, the indemnification clause contains several provisions which relate

to the litigation of third-party suits against the contractor. The contracting officer

must be informed of such claims and be provided any pertinent information the

government requires. FAR 52.250-1(g)(1)-(3). The contractor must also

“[c]omply with the Government’s directions and execute any authorizations

required in connection with settlement or defense of claims or actions.” FAR

52.250-1(g)(4). In addition, “[t]he Government may direct, control, or assist in

settling or defending any claim or action that may involve indemnification under

this clause.” FAR 52.250-1(h).

2. The Definition of Unusually Hazardous Risks

While the body of the contract lacks a definition of the term “unusually

hazardous risks,” KBR sent a letter to the CO on December 29, 2010 (hereinafter

the December 2010 letter) which contains a lengthy excerpt from the

Memorandum of Decision setting forth the definition of unusually hazardous risks.

Neither the accuracy of this excerpt nor the incorporation of this definition of

unusually hazardous risks into the RIO contract appears to be disputed. According

to the December 2010 letter, unusually hazardous risks include the risks of

fire, explosion, combustion or detonation of

hydrocarbons or other combustible substances, or of

munitions, explosives, pyrotechnics and ordnance of all

types, whether military or nonmilitary;

exposure to lethal chemical agents, biological agents,

radioactivity or nuclear materials. The term ‘lethal

8

chemical agents’ for the purposes of this clause, means

(i) the agents GB, VX or mustard, (ii) any other military

chemical agent encountered at the work site, or (iii) any

other highly toxic, carcinogenic, mutagenic, teratogenic

or psychotropic chemical resulting from a reaction with

the items listed in (i) or (ii) above;

sudden or nonsudden release of hydrocarbons or other

toxic or hazardous substances or contaminants into the

environment, including subsurface release;

failure of equipment or failure to control a wild well.

Def.’s Mot. Ex. A at 3-4. Plaintiff’s opposition brief focuses on the third type of

unusually hazardous risks, “sudden or nonsudden release of . . . toxic or hazardous

substances or contaminants into the environment,” as support for KBR’s CDA

claim for indemnification against third-party claims related to its contract

performance at Qarmat Ali. Pl.’s Resp. at 2 (alteration in original). Thus, the RIO

contract appears to have defined unusually hazardous risks, i.e., the risks which

would trigger the indemnification provision set forth in FAR 52.250-1, to include

the release of toxic or hazardous substances or contaminants into the environment.

B. KBR’s Indemnification Request

Although there is considerable ambiguity in KBR’s communications with

the Corps, and a similar lack of clarity in plaintiff’s attempts to describe these

communications in its complaint and briefing before this court, the court has

discerned and sets forth here the series of KBR’s requests for indemnification

communicated to the CO. There are four key documents in this course of

communication: (1) the letter titled “Re: DACA63-03-D-0005; Request for 85-

804 Indemnification,” sent by KBR on December 29, 2010 (the December 2010

letter); (2) the letter titled “Subject: Contract No. DACA63-03-D-0005; Request

for Indemnification, KBR Letter dated December 29, 2010,” sent by the CO on

April 6, 2011 (the April 2011 letter); (3) the letter titled “Re: Response to Request

9

for 85-804 Indemnification, Contract No. DACA63-03-D-0005,” sent by KBR on

June 9, 2011 (the June 2011 letter); and, (4) the letter titled “Subject: Contract

No. DACA63-03-D-0005; Request for Indemnification, Meeting with Contracting

Officer and Counsel on August 3, 2011,” sent by the CO on November 18, 2011

(the November 2011 letter). Def.’s Mot. Exs. A-D. As noted earlier in this

opinion, the complaint failed to identify a particular document as KBR’s

indemnification claim presented to the contracting officer. Also, as similarly

noted, the complaint identifies the November 2011 letter, not the April 2011 letter,

as the CO’s final decision on KBR’s “claim.” See Compl. ¶¶ 13, 32. But see id. ¶

21 (describing the April 2011 letter as a “denial” of KBR’s request).

In opposing defendant’s motion to dismiss, plaintiff finally identifies the

December 2010 letter as its indemnification claim presented to the CO. Pl.’s Resp.

at 1-9; Pl.’s Supp. Br. at 4-5. This seemingly primary reliance on the December

2010 letter is not without nuance, however. According to plaintiff, “KBR’s

December 2010 request, both standing alone and when viewed in light of

subsequent interaction with the United States, constitutes a . . . ‘claim’ for

purposes of the Contract Disputes Act.” Pl.’s Supp. Br. at 4; see Oral Argument

Transcript (Tr.) at 2:32 PM (suggesting that the December 2010 letter and

subsequent correspondence rise to the level of a CDA claim). Plaintiff thus relies

on both the December 2010 letter and the June 2011 letter to describe its claim.

See Pl.’s Resp. at 7-8 & nn.1-2. The court will therefore review the content of the

December 2010 letter, as well as that of the June 2011 letter, to discern the

indemnification request presented to the CO. In the court’s view, the most

accurate labels that could be placed on these documents are: initial request

(December 2010 letter); initial denial (April 2011 letter); request for discussions

accompanied by rebuttal arguments (June 2011 letter); and, final denial

(November 2011 letter).

1. KBR’s Initial Request for Indemnification in the December

2010 Letter

Perhaps the most important sentence in the December 2010 letter is the first

one:

10

Pursuant to Public Law 85-804 and Federal Acquisition

Regulation (“FAR”) clause 52.250-1, KBR provides to

the United States Army Corps of Engineers (“USACE”)

this request for 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 USACE

actively engage in the defense and resolution of certain

claims and disputes arising under the contract.

Def.’s Mot. Ex. A at 1. It is clear from the title of the letter and this sentence that

KBR is requesting some type (or types) of relief under the indemnification clause

of the RIO contract. Both parties agree, Def.’s Mot. at 5 nn.3 & 7; Pl.’s Resp. at

4-5, that a claim under the CDA is defined by the FAR:

Claim means a written demand or written assertion by

one of the contracting parties seeking, as a matter of

right, the payment of money in a sum certain, the

adjustment or interpretation of contract terms, or other

relief arising under or relating to the contract.

FAR 2.101.

The parties disagree, however, as to the nature of KBR’s indemnification

claim, if it is indeed a claim, contained in the December 2010 letter. Defendant,

for the most part, characterizes the December 2010 letter as a monetary claim

(albeit an invalid one). Def.’s Mot. at 6-7; Def.’s Reply at 4; Def.’s Supp. Br. at

1-3. Plaintiff insists that the claim in the December 2010 letter is nonmonetary,

because it seeks “‘interpretation of contract terms, or other relief arising under or

relating to the contract,’” not money. Pl.’s Resp. at 6 (quoting FAR 52.233-1(c));

see Pl.’s Supp. Br. at 4-5, 7, 10. The court finds, as discussed below, demands for

both monetary and nonmonetary relief in the December 2010 letter. The court

turns first to the monetary aspects of relief available under the RIO contract’s

indemnification provision.

11

First, the legal definitions of the term indemnification are “[t]he action of

compensating for loss or damage sustained” and “[t]he compensation so made.”

Black’s, 9th ed. at 837. Second, the indemnification clause in FAR 52.250-1 is of

great utility, at least from the contractor’s viewpoint, in establishing responsibility

for the government to compensate the contractor for third-party claims against the

contractor arising from unusually hazardous risks. See FAR 52.250-1(b)(1).

Third, the arguments presented by KBR for the insertion of this clause in the RIO

contract focused in large part on the “catastrophic financial exposure for personal

injury and property damage claims that is impossible for [KBR] or any private

entity to endure” in the performance of the RIO contract. Def.’s Mot. Ex. A at 7.

In these circumstances, not even the most artfully-crafted letter can avoid the

monetary aspect of a request titled “Request for 85-804 Indemnification.” Id. at 1.

The court now turns to the content of the December 2010 letter, which

largely tracks the topics noted in the first sentence of that letter. The first

sentence, quoted in its entirety above, asks for “A” and “B,” where “A” is

“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 “B” is “that [the Corps] actively engage in the

defense and resolution of certain claims and disputes arising under the contract.”

Def.’s Mot. Ex. A at 1. The December 2010 letter, beginning with its second

paragraph, goes on to describe the lawsuits pending against KBR, id. at 1-2; the

bases for these third-party suits, id. at 2; the negotiations KBR initiated to insert

FAR 52.250-1 into the RIO contract (noting that KBR’s letter requesting the

indemnification clause, dated March 3, 2003, was attached to the December 2010

letter), id. at 2-3; the definition of unusually hazardous risks in the RIO contract,

id. at 3-4; and KBR’s contention that the claims in the third-party suits against

KBR qualify for indemnification under the terms of FAR 52.250-1, id. at 4. All of

these contentions in the December 2010 letter fall under the category of “A,” the

general request for indemnification.

In the final two paragraphs of the December 2010 letter, KBR sets forth

what most reasonably can be seen as two types of requests for relief. The court

reproduces the text of these paragraphs in their entirety:

Consistent with the positions they took back in 2003,

12

KBR’s insurers have denied coverage for [third-party]

claims. Nevertheless, KBR diligently continues to

defend itself, at significant cost, against these claims, and

KBR does not believe that it is liable for any damages.

All future settlement demands will be provided for your

review and for [the Corps] to provide any guidance

concerning defense or settlement.

Pursuant to the terms of FAR 52.250-1, KBR requests

that [the Corps] participate directly in these lawsuits

and/or assume direct responsibility for their defense. In

any event, KBR stands ready to comply with the [Corps’]

directions and instructions regarding the defense against

these claims.

Def.’s Mot. Ex. A at 4. The first request is not particularly direct, but it notes that

KBR has experienced and will experience significant costs in the third-party suits,

both in defense and settlement. In the context of indemnification under FAR

52.250-1 and the preceding paragraphs of the December 2010 letter, KBR, no

matter how indirectly, is invoking its right to compensation from the government.

After alluding to its litigation expenses and settlement exposure, and after

referencing KBR’s duties under the indemnification provision to accept guidance

from the Corps as to the settlement of third-party claims, KBR presents its more

directly-stated request – a request that the Corps “participate directly in these

lawsuits and/or assume direct responsibility for their defense.” Def.’s Mot. Ex. A

at 4. This is, finally, after many, many paragraphs of “A,” the “B” of the first

sentence of KBR’s December 2010 letter. See id. Ex. A at 1 (requesting that the

Corps “actively engage in the defense and resolution of certain claims and disputes

arising under the contract”). In the court’s view, the December 2010 letter

contains a heavy, if somewhat obscured, emphasis on the monetary aspects of

indemnification, and a very light but direct emphasis on encouraging the Corps to

13

actively participate in the litigation of the third-party suits against KBR.4 The

court now turns to the remaining documents in the course of correspondence

between the CO and KBR to confirm that the December 2010 letter contains

requests for both monetary and nonmonetary relief.

2. The CO’s Initial Denial of KBR’s Indemnification Request

in the April 2011 Letter

The CO read the December 2010 letter, as has the court, to contain requests

for two types of relief, monetary as well as nonmonetary. His denial of both

requests is succinctly presented in his April 2011 letter:

I conclude that any litigation costs that KBR incurs as a

result of this litigation [of the third-party suits] are not

covered by the indemnity agreement. In addition, the

Army has taken a neutral position in these lawsuits.

Accordingly, I must decline your request that the U.S.

Army Corps of Engineers . . . request the Department of

Justice to “participate directly in these lawsuits and/or

assume direct responsibility for their defense.”

Def.’s Mot. Ex. B at 1. The CO then proceeds to the issue of whether KBR might

eventually opt to submit a proper CDA claim for the costs of defense and

settlement of the third-party lawsuits:

I recognize that KBR was operating in less than ideal

conditions and that it may choose to file a claim under

the Contract Disputes Act for its costs of defense and any

resulting judgment or settlement. Should KBR desire to

4

/ The court notes that the structure of the December 2010 letter tracks, in large part, the

structure of FAR 52.250-1. The letter addresses third-party claims, the definition of unusually

hazardous risks, the issue of insurance coverage that might reduce the government's

indemnification responsibility, and finally turns to the practical matters of managing the litigation

tasks faced by the contractor. These topics are addressed in a similar order in FAR 52.250-1.

14

do so, it must comply with applicable FAR provisions.

Id. The CO concludes his letter with a reminder to KBR of its obligations under

FAR 52.250-1 to inform and consult with the Corps as to settlement negotiations

in the third-party suits and to explain any denials of insurance benefits that might

have covered defense or settlement costs in those suits. Id. at 1-2.

The court notes that three aspects of the April 2011 letter suggest that the

CO did not consider KBR’s December 2010 letter to contain a valid CDA claim.

First, the letter is not framed as a “final decision” on a CDA claim. See Alliant

Techsystems, Inc. v. United States, 178 F.3d 1260, 1267 (Fed. Cir. 1999) (Alliant)

(noting that a final decision typically contains “standard language announcing that

it constitutes a final decision” (citing Placeway Constr. Corp. v. United States,

920 F.2d 903, 907 (Fed. Cir. 1990))). Second, the letter does not contain a notice

of appeal rights, as required for any final decision on a CDA claim by 41 U.S.C.

§ 7103(e). Third, the CO states that KBR might wish to submit a CDA claim for

any monetary relief under the indemnification provision, which indicates that the

CO did not interpret KBR’s December 2010 letter to contain a valid monetary

claim.

It is also true that no statement in the December 2010 letter announced that

KBR was seeking a final contracting officer decision on either its monetary or its

nonmonetary request. Although neither that fact nor the CO’s interpretation of the

December 2010 letter is dispositive in determining whether the December 2010

letter is a claim as defined by FAR 2.101, the ambiguous wording of KBR’s

December 2010 letter presents a problematic example of a CDA claim, if it is

indeed a claim under the CDA. See infra. The court now turns to the June 2011

letter, in which KBR requests further discussions regarding indemnification and

litigation participation, and disagrees with the Corps’ interpretation of the

indemnification provision in the RIO contract.

3. KBR’s Request for Discussions Accompanied by Rebuttal

Arguments in the June 2011 Letter

15

In its June 2011 letter, KBR provides its “review[]” of the CO’s “response

to our request for indemnification under Public Law 85-804 for various personal

injury claims brought by military personnel against KBR arising from its work for

the Army in Iraq in early 2003.” Def.’s Mot. Ex. C at 1. The court notes, first,

that in this opening statement KBR does not characterize the April 2011 letter as a

denial of a CDA claim; instead, the CO’s April 2011 letter is described as a

response to a request. KBR then proceeds to “provide the following comments to

[the CO’s] response and [notes that it] would welcome the opportunity to discuss

these issues further with [the CO].” Id.

KBR then presents a lengthy “background” section within the June 2011

letter which describes the context for the work at Qarmat Ali and which highlights,

in particular, various obligations of the government and the discovery of sodium

dichromate contamination at the site. Def.’s Mot. Ex. C at 1-4. The most

significant addition to the background facts initially set forth in the December

2010 letter is a detailed set of allegations regarding the government’s failure to

provide a benign environment at Qarmat Ali. Id. The “background” section of the

June 2011 letter concludes with two paragraphs which emphasize the costs KBR

has incurred and will continue to incur in defending and settling the third-party

lawsuits against it:

Although KBR believes that the claims against it

ultimately will be proved meritless, KBR has been forced

to expend considerable time and resources to defend

itself against claims brought both by military personnel

and its own employees. For example, KBR prevailed in

an arbitration action in which several former KBR

employees sought to recover damages for their alleged

sodium dichromate contamination. The arbitrator

ultimately concluded that none of the employees suffered

an injury caused by sodium dichromate, although only

after KBR mounted a full-blown defense in the

arbitration.

KBR also has been successful in obtaining the dismissal

of several of the federal court actions for lack of personal

16

jurisdiction and other legal issues. KBR’s vigorous

defense of these actions, while successful, has resulted

unavoidably in substantial fees and costs. Such fees and

costs will continue to rise as [two named] lawsuits move

towards trial in early 2012.

Id. at 4.

KBR then turns to a rebuttal of the CO’s rejection of its two requests that

were contained in the December 2010 letter. KBR frames its rebuttal arguments

with another “A” and “B” sentence:

Your previous letter [the April 2011 letter] indicated that

the Army intended to deny KBR’s request for [“A”]

indemnification and [“B”] decline to participate directly

in the lawsuits and assume direct responsibility for their

defense.

Def.’s Mot. Ex. C at 4. The court notes that the phrase “intended to deny” might

indicate that KBR hoped that the denial of its requests in the CO’s April 2011

letter was tentative, or, perhaps, that KBR agreed with the Corps that a CDA claim

had not yet been submitted to the CO. In any event, KBR’s June 2011 letter

proceeds to disagree with CO’s interpretation of the scope of the indemnification

provision in the RIO contract, focusing on the “A” portion of KBR’s request, i.e.,

the general request for indemnification. Id. at 4-5. Because of the classified

nature of the provision, KBR also offers to discuss the indemnification provision

in person “in a secure environment.” Id. at 5.

The June 2011 letter then turns to “B,” KBR’s request for the government to

“revisit the issue of what role it appropriately should play in the pending

lawsuits.” Def.’s Mot. Ex. C at 5. This request raises the question of “whether the

Army has a contractual or legal obligation to take a more active role in the

litigation, either under Public Law 85-804, FAR Clause 52[.]228-7, or other

contractual provision.” Id. KBR’s June 2011 letter also addresses the CO’s

17

request for copies of litigation documents. Id.

The penultimate paragraph of the June 2011 letter addresses insurance

issues – both the CO’s request for copies of pertinent coverage and denial of

benefit documents, as well as KBR’s position on the effect of insurance on any

indemnification responsibilities of the government. KBR states, for example, that

“the presence or lack of insurance is not a relevant consideration [because] [t]he

Army has a contractual obligation and it needs to live up to that obligation.”

Def.’s Mot. Ex. C at 5. The concluding sentence of the June 2011 letter states that

“KBR would welcome the opportunity to discuss these issues with you and other

Army representatives in greater detail, and we believe that a meeting in the near

future to discuss them would be useful and productive.” Id.

Plaintiff contends, as noted above, that the December 2010 letter and the

June 2011 letter, together constitute a CDA claim. Pl.’s Resp. at 7-8 & nn.1-2.

The court reserves that question for further analysis. What can be discerned from

the June 2011 letter, however, is that KBR continued to present requests for both

monetary and nonmonetary relief to the CO. The June 2011 letter offers

additional factual background and fleshes out additional legal arguments in

support of these requests, but does not significantly alter the substance of the

requests for relief presented in plaintiff’s December 2010 letter.

4. The CO’s Final Denial of KBR’s Indemnification Request

in the November 2011 Letter

After discussions were held with KBR, the CO responded again to KBR’s

monetary and nonmonetary requests for relief under the indemnification provision

of the RIO contract in a letter dated November 18, 2011. Def.’s Mot. Ex. D. Key

portions of the CO’s November 2011 letter are substantially the same as the CO’s

April 2011 letter: (1) a description of the negotiations regarding and the adoption

of the indemnification clause and the RIO contract’s definition of unusually

hazardous risks; (2) the CO’s determination that the claims in the third-party suits

against KBR are not within the scope of that clause; (3) the CO’s specific finding

“that any litigation costs that KBR incurs as a result of this litigation [of the third-

party suits] are not covered by the classified indemnity agreement”; (4) the CO’s

18

specific rejection of KBR’s request that the government “request the Department

of Justice to assume responsibility for defense of these suits”; (5) the CO’s

statement that “KBR . . . may choose to file a claim under the Contract Disputes

Act for its litigation costs and any resulting judgment or settlement [and that]

[s]hould KBR desire to do so, it must comply with applicable FAR provisions”;

and, (6) a directive that KBR must consult with the CO regarding settlement

activities in the third-party lawsuits. Id. Thus, the CO’s November 2011 letter

confirms, as do all of the documents reviewed here, that KBR presented, in its

December 2010 letter as well as in its June 2011 letter, both monetary and

nonmonetary requests for relief under the indemnification provision of the RIO

contract.

The only new information of any substance contained in the CO’s

November 2011 letter is additional legal argument. First, the CO discusses risks at

Qarmat Ali and distinguishes those from the unusually hazardous risks

contemplated by the indemnification provision in the RIO contract. Def.’s Mot.

Ex. D at 1. Second, the CO addresses plaintiff’s contention, extensively argued in

KBR’s June 2011 letter, that the government failed to provide a benign

environment at Qarmat Ali. Id. at 1-2. In this regard, the CO notes that this

allegation was brought long after the events in question had transpired. See id. at

1 (“It was not until well after this [third-party] litigation had been filed that KBR

complained that the Army had failed to provide benign conditions. Assuming that

the Army failed to comply with this provision, KBR waived that failure by

continuing to perform without complaint.”). Despite these additional

underpinnings to the CO’s rejection of KBR’s request for indemnification under

the RIO contract, the court finds no substantive variance between the CO’s denial

of KBR’s requests in April 2011 and his second denial of these requests in

November 2011. Furthermore, there is no indication in the CO’s November 2011

letter, using the measures noted above for his April 2011 letter, that the CO

considered the communications received from KBR, beginning with the December

2010 letter and continuing through the June 2011 letter, to constitute a claim under

the CDA.

C. KBR’s Indemnification Request Constitutes a Claim Requesting

Two Types of Relief

19

Plaintiff insists that KBR’s December 2010 letter was a claim presented to

the contracting officer, as the term “claim” is defined in FAR 2.101 and relevant

precedent. Pl.’s Resp. at 7-8 & nn.1-2; Pl.’s Supp. Br. at 4-5. Defendant does not

concede that the December 2010 letter was a claim, see Def.’s Reply at 2-3 & n.1;

Def.’s Supp. Br. at 2-3, but does not respond to the precedent cited by plaintiff.

Because the presentment requirement is jurisdictional for a CDA suit in this court,

the court is obliged to resolve this issue before proceeding to defendant’s Rule

12(b)(1) arguments.

As the court has noted, KBR’s December 2010 letter, even as supplemented

by the June 2011 letter, did not explicitly label itself as a CDA claim or as a

request for a final decision of the CO. Plaintiff recognizes, therefore, that the

presentment requirement may only be satisfied if an “implicit request for a final

decision” can be discerned in KBR’s letters. Pl.’s Resp. at 8 n.2. Plaintiff relies

on two decisions of the United States Court of Appeals for the Federal Circuit, as

well as two decisions of this court, to support its contention that its letters

constitute a claim: M. Maropakis, 609 F.3d at 1327-28; James M. Ellett

Construction Co. v. United States, 93 F.3d 1537, 1543-44 (Fed. Cir. 1996) (Ellett

Construction); Scan-Tech Security, L.P. v. United States, 46 Fed. Cl. 326, 333-34

(2000); Hamza v. United States, 31 Fed. Cl. 315, 321-22 (1994). KBR relies on

two basic propositions in these cases: (1) that a CDA claim may be inferred or

implied in written documents; and, (2) that multiple documents may be read

together to present a CDA claim. The court will examine the cases relied upon by

plaintiff to determine whether these propositions, and the application of these

propositions in the cases cited, reflect that KBR’s letters presented a claim to the

CO.

M. Maropakis is of little assistance to KBR. Although the “implicit

request” path to interpreting a letter as presenting a CDA claim was noted in that

decision, the letter in question in M. Maropakis was not considered to imply the

CDA claim asserted by the contractor, in part because the letter “did not request a

final decision.” 609 F.3d at 1328. Further, the court notes that one of the cases

relied upon by M. Maropakis for the possibility of finding an “implicit request” in

a contractor’s letter is distinguishable from the instant case. See id. (citing

Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1579 (Fed. Cir. 1992),

overruled in part on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572

20

(Fed. Cir. 1995) (en banc)). In Transamerica, the Federal Circuit found an

implicit request in a letter to be a CDA claim because, at least in part, the agency

itself recognized the letter to be a claim. 973 F.2d at 1578-79 & n.2 (citing

Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 588-89, 592 (Fed.

Cir. 1987)). Here, as discussed supra, the CO did not consider either the

December 2010 letter or the June 2011 letter to present a CDA claim. The court

finds no support in M. Maropakis for plaintiff’s contention that KBR’s letters

presented a claim to the CO.

Plaintiff also gains little support from Ellett Construction other than the

general rule that an implicit request for a final decision may be discerned in a

contractor’s letter to the CO:

[A CDA claim] does not require an explicit request for a

final decision; “as long as what the contractor desires by

its submissions is a final decision, that prong of the CDA

claim test is met.” Transamerica, 973 F.2d at 1576.

Thus, “a request for a final decision can be implied from

the context of the submission.” [Heyl & Patterson, Inc.

v. O’Keefe, 986 F.2d 480, 483 (Fed. Cir. 1993)].

93 F.3d at 1543. Otherwise, the facts in Ellett Construction are too dissimilar to

provide any guidance in the interpretation of KBR’s letters. The Federal Circuit

considered whether a settlement proposal regarding a termination for convenience

might also constitute an implied request for a final decision. Ellett Construction,

93 F.3d at 1543-44. No settlement proposal is at issue in this case; the

distinguishable factual circumstances in Ellett Construction shed no insight on

KBR’s letters, so the court must look elsewhere for applicable precedent.

Plaintiff relies on Alliant for other principles, but that Federal Circuit

decision also considered whether a letter from a contractor constituted a CDA

claim. The parties in Alliant did not dispute that the following language in the

letter requested a final decision from the contracting officer:

21

“[I]f you disagree with our position, please consider this

letter a claim and request for a final decision under the

CDA.”

178 F.3d at 1265. No such language was included in KBR’s two letters to the CO.

In the absence of such language, the court’s task is to determine whether the

contractor’s intent was to request a final decision from the CO. See, e.g.,

Transamerica, 973 F.2d at 1576 (asking whether “the contractor desires by its

submissions . . . a final decision”). This is a fact-specific inquiry, where decisions

in other cases of this court are of limited value.

This court in Scan-Tech found an implied request for a final decision in a

letter which attached invoices for payment. 46 Fed. Cl. at 334. Here, KBR’s

letters attached numerous documents, including court documents such as

complaints and briefs from the third-party suits, but did not attach invoices for the

legal bills for defending against the third-party suits. Scan-Tech is therefore

distinguishable on its facts.

In Hamza, another case cited by plaintiff, this court discerned an “implicit

request for a final decision” apparently because the contractor had indicated in his

letters that denial of his additional rent request would cause him to litigate the

issue. 31 Fed. Cl. at 322. In its letters to the CO, KBR did not indicate that denial

of its request for indemnification would lead to a lawsuit to enforce KBR’s rights.

Thus, Hamza, too, is distinguishable on its facts.

Finding no analogous facts in the cases cited by plaintiff, the court turns, as

it must, to “‘the context of the submission.’” Ellett Construction, 93 F.3d at 1543

(quoting Heyl & Patterson, 986 F.2d at 483). Here, KBR was facing numerous

lawsuits and had already incurred two years’ worth of litigation costs. According

to plaintiff’s counsel at oral argument, KBR had been reimbursed for some of its

arbitration costs to defend against claims of KBR employees but had not received

payment for its litigation expenses in the third-party suits. Tr. at 2:56 PM-2:57

PM. As a large, experienced government contractor, one would expect KBR to

clearly state a specific request for a final decision from the CO for any important

claim. Instead, the December 2010 letter is titled “DACA63-03-D-0005; Request

22

for 85-804 Indemnification,” and neither of KBR’s letters references the

submission of a CDA claim or a request for a final decision on such a claim by the

contracting officer.

In the end, the intent of KBR is not immediately evident and, thus, the status

of KBR’s letters presents a close question. There is a decision from this court

which may provide further guidance in determining the contractor’s intent in

submitting a communication to a contracting officer. See BLR Grp. of Am., Inc. v.

United States, 96 Fed. Cl. 9 (2010). In BLR Group, the contractor reacted to a

negative performance evaluation. 96 Fed. Cl. at 11-12. The contractor later

attempted to premise a suit in this court on a submission to the contracting officer

that requested that the performance evaluation be revised. Id. at 12. This court

found that it lacked jurisdiction over the suit because the “plaintiff, in submitting a

response to the Air Force’s evaluation, was acting within the confines of the

FAR’s performance evaluation procedures and was not submitting a claim

pursuant to the CDA.” Id. at 14. Thus, BLR Group suggests that this court should

consider whether a submission from the contractor serves some purpose other than

that of filing a CDA claim.

One possible interpretation of KBR’s letters is that they were submitted as

part of the litigation management procedures required by FAR 52.250-1(g)-(h),

not as a CDA claim. This would explain why the CO viewed KBR’s letters as

more of a preliminary exploration of the parties’ responsibilities regarding the

third-party suits, and why he suggested that KBR might choose to later file a CDA

claim for its litigation defense and settlement costs. The court is not certain,

however, that plaintiff’s “Request for 85-804 Indemnification” falls neatly into

any of the reporting or consulting provisions outlined in FAR 52.250-1(g)-(h).

Although the court cannot endorse plaintiff’s statement that the December

2010 and June 2011 letters “express[] KBR[’s] clear desire for a final decision

from the contracting officer regarding his interpretation of the indemnification

agreement and the government’s obligations thereunder,” Pl.’s Resp. at 7-8,

KBR’s letters express the desire of KBR to obtain a decision on its monetary and

nonmonetary requests. Under the precedent cited by plaintiff and discussed

herein, the court finds that KBR’s letters contain an implied request for a final

decision of the CO. Ellett Construction, 93 F.3d at 1543. Having determined that

23

KBR submitted a claim to the contracting officer, the court must decide whether

that claim was valid under the CDA and relevant precedent.5

D. KBR’s Monetary Claim Was Invalid

Defendant’s challenge to the validity of KBR’s monetary claim for

indemnification of its third-party litigation defense and settlement expenses is

two-pronged. First, citing M. Maropakis, 609 F.3d at 1329, and Reflectone, 60

F.3d at 1576, among other authorities, the government argues that failure to

present a monetary claim for a “sum certain” renders any monetary claim in the

December 2010 and June 2011 letters invalid. Def.’s Mot. at 6. Second, largely

relying on M. Maropakis, 609 F.3d at 1329, the government argues that KBR’s

failure to certify its claim of “well over $100,000” provides an additional reason to

render any monetary claim in the December 2010 and June 2011 letters invalid.

Def.’s Mot. at 8. It is undisputed that the KBR letters in December 2010 and June

2011 fail to state a sum certain and that the monetary claim therein is not certified.

Additionally, plaintiff sets forth no contention that any monetary claim for

litigation expenses, as of December 2010 when KBR had incurred two years’

worth of legal fees, would be under $100,000 so as to not require certification. Cf.

Compl. ¶ 36 (asserting that after less than two additional years of litigation, KBR

had incurred litigation expenses that totaled “in excess of fifteen million dollars”).

Plaintiff’s only defense against the invalidity of KBR’s monetary claim, as

submitted to the CO in its letters, is that there was no monetary claim submitted to

the CO. Pl.’s Resp. at 1-2, 4-7; Pl.’s Supp. Br. at 4-5. The court, however, after a

thorough examination of the December 2010 and June 2011 letters, concludes that

KBR did present a monetary claim to the CO. See supra. Only one of plaintiff’s

contentions disavowing the monetary nature of its indemnification request in its

5

/ If the court has erred in its analysis and no CDA claim can be discerned in either the

December 2010 letter and/or the June 2011 letter, plaintiff’s suit in this court would necessarily

be dismissed for lack of jurisdiction based on KBR’s failure to first seek a final decision from the

CO on its claim. See, e.g., M. Maropakis, 609 F.3d at 1328.

24

letters merits comment here.6 Plaintiff argues that “[s]ignificantly, the contracting

officer did not raise any objections that the December 2010 nonmonetary claim

improperly omitted a sum certain, nor did he request certification of the claim by

KBR[].” Pl.’s Resp. at 6. This is hardly suprising, however, because, as noted

supra, the CO did not consider the December 2010 letter or the June 2011 letter to

present a CDA claim.

The court finds that the monetary claim presented to the CO in KBR’s

December 2010 and June 2011 letters was invalid for failure to request a sum

certain and for not being certified by KBR. Having failed to present a valid

monetary claim to the CO, the court has no jurisdiction over any monetary claim

stated in KBR’s complaint. See, e.g., Northrop Grumman Computing, 709 F.3d at

1112 & n.3; M. Maropakis, 609 F.3d at 1328. In fact, plaintiff concedes that

should any portion of the complaint be construed to contain a claim for monetary

damages for third-party litigation defense and settlement expenses, the court must

dismiss that claim. Pl.’s Supp. Br. at 7.

Putting aside, for the moment, the question of what other claims might be

contained in the complaint, the court agrees with defendant that a claim for money

damages is clearly presented in the complaint’s prayer for relief. The first

paragraph of the prayer for relief requests

[t]hat this Court grant KBR[]’s request for

indemnification because [the Corps’] denial of KBR[]’s

request breached the contract and the indemnification

agreement entered into pursuant to P.L. 85-804 and FAR

Clause 52.250-1, and was otherwise contrary to law.

Compl. at 8. The second paragraph of the prayer for relief requests

[t]hat this Court direct the government to indemnify

6

/ Most of plaintiff’s arguments focus on the nature and validity of KBR’s nonmonetary

claim in the December 2010 letter, a topic which is addressed in the next section of this opinion.

25

KBR[] for all fees, costs, settlements, final judgments

and all other damages resulting from such tort litigation.

Id. The only other demand in the prayer for relief is for the award of “such other

relief as the Court deems proper, including but not limited to interest, fees, and

other related costs.” Id. The plain language of the prayer for relief clearly seeks

money damages for “all fees, costs, settlements, final judgments and all other

damages resulting from [the third-party] tort litigation.” Id.

Plaintiff creatively construes the complaint to exclude any request for

money damages. According to plaintiff,

KBR[]’s Complaint clearly alleges that the government

has failed to comply with its indemnification obligations

and KBR[] is seeking the Court’s intervention to resolve

the scope of the government’s contractual obligations.

Pl.’s Resp. at 6. Plaintiff argues that the court must read the complaint “as a

whole” to determine that “KBR did not seek a monetary award from the Court.”

Pl.’s Supp. Br. at 6-7.

Here, the court has read the complaint as a whole, including the prayer for

relief, and comes to the opposite conclusion, i.e., that the complaint contains a

claim for money damages. See Compl. ¶ 10 (stating that the Corps “has also

refused to indemnify KBR[] for the costs of defending against the various

lawsuits”), ¶ 30 (stating that “KBR[] is entitled to indemnification by the

government of all ‘[c]laims (including reasonable expenses of litigation or

settlement) by third persons (including employees of the Contractor) for death;

personal injury; or loss of, damage to, or loss of use of property.’ FAR Clause

52.250-l(b)(l)”), ¶ 31 (stating that “[p]ursuant to P.L. 85-804 and FAR Clause

52.250-1, KBR[] submitted its request to the [Corps] for indemnification for

claims being asserted by third persons for personal injury allegedly arising out of

‘unusually hazardous’ risks associated with KBR[]’s performance under the RIO

contract”), ¶ 33 (stating that the Corps “has refused to indemnify KBR[] for the

26

costs of defending against the various third-party lawsuits”), ¶ 36 (“The

government’s breach has damaged KBR[]. To date, KBR[] has incurred

substantial legal fees, costs, and other related expenses in defending against the

underlying tort suits in an amount in excess of fifteen million dollars.”), ¶ 37

(“KBR[] is entitled to recover all such fees, costs, and other related expenses in

connection with its defense of the various third-party claims 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.”); see also id. at 8

(requesting that “this Court direct the government to indemnify KBR[] for all fees,

costs, settlements, final judgments and all other damages resulting from such tort

litigation”).

Although plaintiff attempts to characterize the complaint as merely a request

for declaratory relief, Pl.’s Supp. Br. at 7, the plain language of the complaint, in

sections titled “introduction,” “count one [the sole count] – breach of contract,”

and “prayer for relief,” references money damages owed KBR under the

indemnification provision of the RIO contract. Thus, the complaint in this case is

determined to contain a claim for money damages. However, because that claim

for money damages, as submitted to the CO, was invalid for the reasons discussed

above, this court lacks subject matter jurisdiction and therefore dismisses KBR’s

request for monetary damages in this suit.

E. KBR’s Nonmonetary Claim in Its Letters Cannot Support Any of

Plaintiff’s Claims in the Complaint

1. KBR’s Nonmonetary Claim in Its Letters Cannot Support

Plaintiff’s Monetary Claim in the Complaint

The court now turns to consider whether KBR’s nonmonetary request that

the government actively participate in the third-party lawsuits could serve to

support plaintiff’s monetary claim in the complaint filed here. As a threshold

matter, defendant relies on Scott Timber Co. v. United States, 333 F.3d 1358, 1365

(Fed. Cir. 2003), for the proposition that the appeal of a denied CDA claim must

seek essentially the same relief as the CDA claim previously presented to the

contracting officer. Def.’s Mot. at 7; Def.’s Reply at 2-3. Thus, in defendant’s

27

view, it is elementary that any nonmonetary claim presented to the CO cannot

support a monetary claim in this court.

Plaintiff does not refute this particular argument, perhaps because plaintiff’s

position is that there is no monetary claim in the complaint. See, e.g., Pl.’s Supp.

Br. at 7 (stating that “KBR did not seek a monetary award from the Court” in the

complaint). As contended by the government, the law is clear that “the same claim

must be presented to the Court of Federal Claims as was decided by the

contracting officer.” Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361

(Fed. Cir. 2007) (citing Scott Timber, 333 F.3d at 1365). Here, KBR’s

nonmonetary request to the CO, in both its December 2010 letter and its June 2011

letter, was a demand that the government participate in the defense of the third-

party lawsuits against KBR. Def.’s Mot. Ex. A at 1, 4, Ex. C at 5. The nature of

this request for relief is fundamentally different than a request for reimbursement

of litigation defense and settlement costs.7

Although both nonmonetary and monetary requests for relief might have

been included by KBR under the rubric “indemnification” in its communications

with the CO, the two types of claims are different in nature. The court finds that

KBR’s nonmonetary request that the government actively participate in the third-

party lawsuits against KBR is not the same as the monetary claim in the complaint.

The court holds, therefore, that KBR’s nonmonetary CDA claim presented to the

CO cannot support this court’s jurisdiction over KBR’s monetary CDA claim.

2. There Is No Nonmonetary Claim in the Complaint

Defendant argues that there is no nonmonetary claim in the complaint,

because the complaint is essentially about money. Def.’s Mot. at 6-7; Def.’s Reply

7

/ Indeed, in some respects the “participation” request could be seen as almost the

opposite of a legal fees reimbursement request. The more participation provided by Department

of Justice attorneys, the lower the amount of legal fees that KBR would expend in the third-party

suits. See Tr. at 3:02 PM (plaintiff’s counsel noting that if the government had taken over the

defense of the third-party lawsuits in 2010, many of the legal fees actually incurred by KBR

would not have been incurred).

28

at 3-4; Def.’s Supp. Br. at 2-4. Defendant suggests that plaintiff’s complaint is

nothing more than an artful attempt to disguise a claim for money damages as a

claim for contract interpretation, in order to avoid CDA requirements for claims

which state a sum certain and the certification of claims exceeding $100,000.

Def.’s Reply at 4. Although the court cannot guess at the motivation of plaintiff in

crafting its complaint, the court agrees with defendant that the gravamen of the

complaint is a request for money.

Plaintiff asserts that the complaint asks for declaratory relief, although

plaintiff concedes that the terms “declaratory relief” and “declaratory judgment”

cannot be found in the complaint. Pl.’s Supp. Br. at 6. Even if the court were to

read the complaint to include a request for declaratory relief, which it does not,

such a request would merely mask what is an overt attempt to obtain

indemnification from the government in the form of monetary damages. In the

end, it does not matter whether plaintiff characterizes the complaint as containing

a request for declaratory relief – nor does it matter whether plaintiff claims that the

gravamen of the complaint is a nonmonetary request for contract interpretation,

not a monetary request for damages. Pl.’s Supp. Br. at 5-7. Such characterizations

fail to alter the true nature of the claim and in that regard, numerous decisions of

the boards of contract appeals have rightly rejected such monetary claims framed

as requests for contract interpretation that fail to observe the requirements of the

CDA. See, e.g., Eaton Contract Servs., Inc., ASBCA No. 52888, 02-2 BCA ¶

32023 (Oct. 9, 2002); Weststar Eng’g, Inc., ASBCA No. 52484, 02-1 BCA ¶

31759 (Feb. 11, 2002); Westinghouse Elec. Corp., Inc., ASBCA No. 47868, 95-1

BCA ¶ 27364 (Dec. 16, 1994).

Plaintiff does not cite any contrary authority that would allow the court to

distinguish the holdings in Eaton Contract Services, Weststar Engineering or

Westinghouse from the circumstances of this case, but merely relies on Alliant for

the general principle that nonmonetary relief is available under the CDA. See Pl.’s

Resp. at 5 (citing Alliant, 178 F.3d at 1267, 1270); Pl.’s Supp. Br. at 5 (citing

Alliant, 178 F.3d at 1267). Alliant, however, did not address “nonmonetary”

claims that are actually monetary claims dressed up in “contract interpretation”

clothing, which is in effect how defendant has described the complaint here.

Plaintiff also notes that nonmonetary claims do not need to be certified, Pl.’s Resp.

at 5 (citing Alliant and two board of contract appeals cases), but this unremarkable

29

aspect of truly nonmonetary claims, which do not trigger the certification

requirement of the CDA, 41 U.S.C. § 7103(b)(1), does nothing to refute the

holdings in Eaton Contract Services, Weststar Engineering and Westinghouse

which provide a rule of law applicable to KBR’s complaint.8 Plaintiff concedes

that it is the gravamen of the complaint that determines the outcome of the

jurisdictional analysis. Pl.’s Supp. Br. at 5-6; Tr. at 2:37 PM. Because the

gravamen of the complaint here is a request for indemnification in the form of

money damages, the court cannot exercise jurisdiction over what plaintiff styles as

a nonmonetary claim because that “nonmonetary” claim is essentially an invalid

CDA claim for money damages.

3. Plaintiff’s Citations to Board of Contract Appeals Cases

Discussing “Nonmonetary” Claims Cannot Preserve

Plaintiff’s Claims in the Complaint

The two board of contract appeals cases cited by plaintiff do not redeem

KBR’s “nonmonetary” claim in the complaint. First, in Sims Paving Corp.,

DOTCAB No. 1822, 87-2 BCA ¶ 19928 (June 22, 1987), the board rejected a

motion to dismiss premised, in part, on lack of certification of the contractor’s

claim. However, the claim in that case, for the conversion of a termination for

default to a termination for the convenience of the government, is quite dissimilar

to the dispute here over the scope of the RIO contract’s indemnification provision.

See Ralph C. Nash, Jr., Nonmonetary Claims: Jurisdiction to Exercise Discretion,

13 No. 11 Nash & Cibinic Report ¶ 57 (1999) (“Whatever may be the rules for

other types of nonmonetary claims, the challenge by a contractor to a default

termination of its contract is in a class by itself.”). Thus, although Sims Paving

correctly concludes that nonmonetary claims do not, as a general rule, need

certification, the analysis of the nonmonetary claim in that decision is inapposite

to the claim presented in KBR’s complaint.

8

/ This court in DaVita, Inc. v. United States, 110 Fed. Cl. 71, 86 (2013), recognized that

Westar Engineering correctly states the rule of law on this issue but did not find the rule in

Westar Engineering to be applicable in the case before it. The instant case is distinguishable

from DaVita on its facts; to the extent that DaVita could be seen as supporting jurisdiction in this

court for KBR’s nonmonetary claim, the court respectfully disagrees with that interpretation of

DaVita’s jurisdictional analysis of nonmonetary CDA claims.

30

Second, Summit Contractors, AGBCA No. 81-136-1, 81-1 BCA ¶ 14872

(Jan. 12, 1981), the other decision cited by plaintiff, was a Forest Service timber

sales contract dispute. The board considered a number of issues relevant to

nonmonetary and monetary claims, and cited an example of a nonmonetary claim

that did not require certification. The example cited for illustrative purposes in

Summit Contractors is not at all similar to the “nonmonetary” claim advanced by

KBR in the complaint in this case:

[The situation where the contract’s] [r]emedy clause

provides for non-monetary relief . . . is illustrated in the

case of Forest Service timber sale contracts by the

contract section for adjustment of contract term for force

majeure reasons. Thus, the contract remedy clause

permits the Board to extend the contract term for the

period of excusable delay encountered by the contractor.

In effect the relief is an allowance of additional time to

harvest and remove timber from a sale. Although such

relief has a monetary value, it would be extremely

difficult for a contractor to express the claim in terms of

money. This is so because any additional time granted is

simply a right to harvest and remove timber at a purchase

price which would have applied but for the excusable

delay and the end result in money is unknown until

performance in the time extension period has been

completed.

Summit Contractors, 81-1 BCA ¶ 14872. Thus, in the example described in

Summit Contractors, a claim to extend a contract term to allow the harvest and

removal of additional timber was seen as nonmonetary, not monetary, at least in

part because the monetary value of the claim had not begun to be quantified and

would be difficult to quantify.

In this case, however, KBR had already incurred two years’ worth of legal

fees before submitting the December 2010 letter to the CO, and, by the time KBR

31

came to this forum, KBR was estimating the quantum of its claim as a claim for at

least $15,000,000. See Compl. ¶ 36; Compl. Civil Cover Sheet; Def.’s Reply Ex.

1 at 4 (KBR’s Securities and Exchange Commission filing describing the value of

this lawsuit). Thus, KBR’s “nonmonetary claim for contract interpretation”

submitted to the CO, Pl.’s Resp. at 5, and the “clear effort by KBR to seek review

and reversal of the contracting officer’s ‘interpretation of contract terms’” in the

complaint, Pl.’s Supp. Br. at 6, are not at all like the example of a nonmonetary

claim discussed in Summit Contractors. Plaintiff’s reliance on Summit

Contractors is misplaced. Indeed, other portions of that decision indicate that

KBR’s complaint should be dismissed.

At issue in Summit Contractors was a restrictive interpretation of a timber

sales contract, issued on June 25, 1980, as to which types of trees could be

harvested by the contractor. The board held that this was a final decision of the

contracting officer on the claim submitted a week before by the contractor:

[I]t is correct to view the contractor’s June 17, 1980[]

letter as a claim for a different interpretation of the

contract.

But the claim so considered by the contracting officer[]

leads the contractor to seek relief [from this board of

contract appeals] in the nature of specific performance or

monetary damages to be quantified in a subsequent claim

to be filed by the contractor for consideration.

Summit Contractors, 81-1 BCA ¶ 14872. The board thus differentiated between

the request for contract interpretation submitted to the contracting officer and the

claims before the board in the appeal. The contractor’s appeal before the board set

forth its requested relief as follows:

If it is determined that the contracting officer’s letter of

June 25, 1980[] is a decision on a claim filed by the

Appellant, that the Board sustain this appeal and that the

32

Board grant the following relief either cumulative[ly]

and/or alternatively:

a. Issue marking guidelines [for timber harvesting] in

accordance with the contract as modified by agreement

of the parties;

b. Issue marking guidelines in accordance with the

contract;

c. Direct the United States Government to forthwith

designate trees for cutting pursuant to said guidelines for

cutting and removal by Appellant; and/or

d. Award Appellant its monetary damages, costs and lost

profits according to proof.

Id. The board dismissed both types of claims before it (nonmonetary for specific

performance and monetary for damages), but for different reasons.

The board offered the following jurisdictional analysis:

The contractor states that it will quantify its monetary

damages, file a certified claim for such amount with the

contracting officer and appeal any adverse decision.

The alternative relief sought, which appears to be in the

nature of a request for specific performance in ma[r]king

timber and establishing guidelines for marking, is

outside the jurisdiction of the Board under the Act. Such

relief would not be available if the contract was still in

effect, and it appears that the contract may have

terminated in September 1980. . . . Under the [Contract

Disputes] Act, the contractor’s course of action in a

contract which has expired is to seek monetary damages

for such claims as may have been reserved at the time of

33

executing the final payment release documents.

Id. The board thus held that the contractor’s nonmonetary request for specific

performance by the government was beyond its jurisdiction, and dismissed the

nonmonetary claim for this reason. As for money damages, this claim was

dismissed as premature because it was not yet a certified claim for money damages

in a sum certain. Id. (citing Harnischfeger Corp., ASBCA No. 23918, 80-2 BCA

¶ 14541 (June 11, 1980)).

The dismissal of the contractor’s monetary claim (which was conditioned on

a future certification that had not occurred) in Summit Contractors would be

consonant with this court’s dismissal of KBR’s monetary claim in the present

complaint. This holding in Summit Contractors thus lends more support to the

government’s motion to dismiss than to plaintiff’s opposition to that motion.9 The

court now turns to a final issue: whether the complaint contains a request for

specific performance by the Corps, and, if so, whether such a claim survives

defendant’s motion to dismiss.

4. Any Nonmonetary Claim for Specific Performance of the

United States to Defend KBR against Third-Party Suits

Would Necessarily Be Dismissed for Failure to State a

Claim upon Which Relief May Be Granted

Neither party appears to interpret the complaint to contain a request for

specific performance. See Def.’s Supp. Br. at 4 (“KBR’s complaint never requests

that the Court direct such a defense or make any finding that KBR is entitled to

it.”); Pl.’s Supp. Br. at 7 (describing the complaint as containing a nonmonetary

9

/ Another board of contract appeals decision shows that KBR could have submitted a

certified monetary claim for indemnification to the CO in December 2010. In Boeing Co.,

ASBCA No. 54853, 06-1 BCA ¶ 33270 (Apr. 12, 2006), the contractor relied on Public Law

85-804 to submit a certified claim for “incurred and future toxic tort litigation costs

uncompensated by insurance.” Id. Jurisdictional challenges to this claim were rejected by the

board. Id. The court cannot explain why KBR did not choose to submit a certified monetary

claim to the CO, rather than the uncertified monetary claim in its letters to the CO.

34

claim for declaratory relief). Although the nonmonetary claim in KBR’s letters

requests that the United States actively participate in defending and settling the

third-party lawsuits against KBR, Def.’s Mot. Ex. A at 1, 4, Ex. C at 5; see Pl.’s

Supp. Br. at 4 (“KBR’s December 2010 [letter] request[s] . . . [that] the United

States step in and assume KBR’s defense in the underlying tort lawsuits . . . .”),

there is no such request in the complaint filed in this court. In the court’s view,

there is no request for specific performance by the United States in the complaint.

If plaintiff’s broad references to indemnification under FAR 52.250-1 in the

prayer for relief of its complaint could somehow be read to include a claim for

specific performance by the United States, the court notes that such a claim would

necessarily be dismissed for failure to state a claim upon which relief may be

granted. Here, the specific terms of FAR 52.250-1 afford discretion to the United

States to participate in the defense of claims against its contractors protected by

this contract provision. See FAR 52.250-1(h) (“The Government may direct,

control, or assist in settling or defending any claim or action that may involve

indemnification under this clause.”) (emphasis added). Thus, should any demand

for specific performance in this regard be discerned in the complaint, it would

necessarily be dismissed because FAR 52.250-1 affords the United States

discretion to participate, or to not participate, in third-party suits against KBR.

See, e.g., Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (stating

that dismissal is appropriate under RCFC 12(b)(6) “when the facts asserted by the

claimant do not entitle him to a legal remedy”); see also Amsinger v. United

States, 99 Fed. Cl. 254, 257 (2011) (“When the government has challenged the

merits of a claim by means of a motion filed under RCFC 12(b)(1), this court may

dismiss that portion of the complaint for failure to state a claim upon which relief

can be granted, under RCFC 12(b)(6).” (citing Stephanatos v. United States, 81

Fed. Cl. 440, 442 (2008); Cherbanaeff v. United States, 77 Fed. Cl. 490, 492

(2007); Esch v. United States, 49 Fed. Cl. 631, 634 (2001))).

CONCLUSION

For the foregoing reasons, the court lacks jurisdiction over the complaint

and it is hereby ORDERED that

35

(1) Defendant’s Motion to Dismiss, filed March 18, 2013, is

GRANTED;

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

defendant DISMISSING plaintiff’s 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

36