Kellogg Brown & Root Services, Inc.

Material Facts

• Contract No. DAAA09-02-D-0007 was a cost-plus-award-fee, indefinite-quantity, indefinite-delivery LOGCAP III contract.
• The contract required the Service Theater Commander to provide force protection to contractor employees commensurate with that given to specified government civilians unless otherwise stated in a task order.
• Task Orders 59 and 89 required the government to provide force protection and security for contractor personnel in convoys and on site commensurate with the threat.
• Attacks on KBRS and subcontractor supply convoys began in June 2003 and continued during performance in Iraq.
• The government lacked sufficient forces and resources to provide the promised level of protection to KBRS and its subcontractors.
• KBRS and its subcontractors used private security to move personnel, money, equipment, food, and supplies when military protection was unavailable.
• The government knew that KBRS and its subcontractors were using private security and did not take action to stop that use during performance.
• Most or all of the LOGCAP III subcontracts were negotiated on a firm-fixed-price basis.
• The Army withheld amounts from KBRS billings to recoup previously paid private-security costs that it determined were unallowable.
• The 2010 and 2011 settlement agreements covered specified DCAA Forms 1, while the Form 1 disallowing the private-security costs was not settled.
• The private-security costs incurred by KBRS and its subcontractors were reasonable under FAR 31.201-3(a).
• The contract was a rated order, and failure to deliver within the required time could subject KBRS to criminal penalties.

Parties

Appellant

Kellogg Brown & Root Services, Inc.

Respondent Agency

Army

Contracting Agency

Army Operations Support Command, Rock Island, Illinois

Contract Number

DAAA09-02-D-0007