Kellogg Brown & Root Services, Inc.

Material Facts

• CONCAP III was a Cost-Plus-Award-Fee, Indefinite-Delivery/Indefinite-Quantity contract requiring emergency construction and support capabilities.
• KBR generally used fixed all-in labor rates because the undefined contingency work made firm-fixed-price subcontracts impracticable.
• KBR had an approved purchasing system and was not required to obtain contracting officer approval before executing most types of subcontracts.
• BMS-CAT performed under time-and-materials arrangements and invoiced a 21% markup on labor and equipment costs.
• KBR’s program manager testified that KBR and BMS-CAT orally agreed to permit the labor markup, and BMS-CAT continued submitting invoices with the markup that KBR continued paying.
• ECC performed under a fixed-price, time-and-materials subcontract at a fixed hourly rate, and its bid was competitive with or lower than comparable offers after adjustment for disclosed overhead items.
• BE&K’s workforce was shifted from anticipated public-works services to tent-camp construction subject to Davis-Bacon Act wages, requiring labor-rate adjustments.
• KBR presented supporting documentation for the disputed BE&K costs, including the Lowe’s receipt and Riverside Electricians invoices.
• FSS performed the work but submitted payroll information in an incorrect format rather than providing certified payrolls in the required form.
• Kustom increased its mobilization and demobilization charges by $69,000 and increased its hourly labor rate by $13 per hour.
• Bear requested an adjustment after supplier freight and fuel costs increased, and the Navy did not dispute the adjustment for limestone placed after the request.
• CMARK’s dining-facility subcontract was negotiated during the urgent post-Hurricane Katrina response and included a minimum charge based on 2,500 meals per meal service.

Parties

Appellant

Kellogg Brown & Root Services, Inc.

Respondent Agency

Naval Facilities Engineering Command Atlantic

Contracting Agency

Naval Facilities Engineering Command Atlantic

Contract Number

N62470-04-D-4017