               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Kellogg Brown & Root Services, Inc.           )      ASBCA No. 58583
                                              )
Under Contract No. DAAA09-02-D-0007           )

APPEARANCES FOR THE APPELLANT:                      Jason N. Workmaster, Esq.
                                                    John E. Hall, Esq.
                                                    Raymond B. Biagini, Esq.
                                                    Herbert L. Fenster, Esq.
                                                    Alejandro L. Sarria, Esq.
                                                     Covington & Burling LLP
                                                     Washington, DC

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    ChristinaLynn E. McCoy, Esq.
                                                    MAJ Lawrence Gilbert, JA
                                                    CPT Anthony Lenze, JA
                                                    MAJ James W. Nelson, JA
                                                     Trial Attorneys

               OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN
                 ON THE GOVERNMENT'S MOTION TO DISMISS

       On 4 June 2013, the government filed a motion to dismiss ASBCA No. 58583 1
for lack of jurisdiction. Appellant Kellogg Brown & Root Services, Inc. (KBRS)
opposes. We deny the motion.

       In ASBCA No. 58583, KBRS appeals the contracting officer's (CO's) deemed
denial of a claim for breach of contract submitted to the CO on 29 September 20 I I.
KBRS alleges that the government breached its contractual obligation to provide
adequate force protection to KBRS and its subcontractors performing contract services
in support of the war effort in Iraq. For further factual background, see our opinion in
Kellogg Brown & Root Services, Inc., ASBCA No. 56358 et al., I4-I BCA iJ 35,639,



1
    While ASBCA No. 58583 is consolidated with ASBCA Nos. 56358, 57I5I and 57327
        the motion applies only to ASBCA No. 58583.
ajf'd, rev 'din part, vacated in part, and remanded, McHugh v. Kellogg Brown & Root
Services, Inc., 2015 U.S. App. LEXIS 16513 (Fed. Cir. Sept. 15, 2015).

        The primary ground for dismissal advanced by the government in its motion was
that the claim underlying this appeal had been filed outside the six-year statute of
limitations contained in the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4)(A).
Additionally, the government argued that KBRS has not asserted a claim on behalf of
its subcontractors "as a matter of right" pursuant to FAR 33.201 2, that its claim does
not give the CO adequate notice of the basis for its claim, and that the claim must fail
since adequate remedies were available under the contract. The government's motion
was opposed by KBRS. The Board subsequently stayed further proceedings in this
appeal pending judicial review of its decision cited above.

        While the government's motion to dismiss was pending, the United States Court
of Appeals for the Federal Circuit issued its decision in Sikorsky Aircraft Corp. v.
United States, 773 F.3d 1315 (Fed. Cir. 2014). The court in Sikorsky applied the
Supreme Court's decision in Sebelius v. Auburn Regional Medical Center,
133 S. Ct. 817 (2013), which articulated a more stringent test for determining whether
statutory time limits are jurisdictional, to determine that the six-year limitations period
in the CDA is not jurisdictional. Sikorsky, 773 F.3d at 1320-22. This Board has
subsequently denied motions to dismiss for lack of jurisdiction that are based on the
CDA limitations period. See, e.g., Al Nawars Co., ASBCA Nos. 59043, 59044,
15-1 BCA if 35,955; Combat Support Associates, ASBCA Nos. 58945, 58946,
15-1BCAif35,923. The government may still assert that KBRS's claim is time-barred
as an affirmative defense, but bears the burden of proof on the issue. A lion Science and
Technology Corporation, ASBCA No. 58992, 15-1BCAif36,168.

       The remainder of the government's arguments that the Board lacks jurisdiction
of KBRS's breach claim are unpersuasive. KBRS's 29 September 2011 claim
submittal clearly apprised the CO that its breach claim was based on the Army's failure
to provide the force protection required of it by the contract, entitling KBRS and its
subcontractors as a matter of right to mitigate their damages by hiring private security
companies. Nor does the Army's assertion regarding the adequacy of contract
remedies operate as a bar to our jurisdiction.




2   At the time the contract was awarded, the FAR definition of "claim" was found at
         FAR 33.201. It is now found at FAR 2.101.

                                             2
                                     DECISION

       For the reasons stated, the government's motion to dismiss ASBCA No. 58583
for lack of jurisdiction is denied.

      Dated: 19 January 2016




I concur



~~
Administrative Judge                          Administrative Judge
Acting Chairman                               Vice Chairman
Armed Services Board                          Armed Services Board
of Contract Appeals                           of Contract Appeals



     I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No.-58583, Appeal of Kellogg
Brown & Root Services, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                              JEFFREY D. GARDIN
                                              Recorder, Armed Services
                                              Board of Contract Appeals




                                         3
