Kellogg Brown & Root Services, Inc.

Material Facts

• The Navy awarded KBR a contract on December 6, 2012, for recurring base-operation support services at Camp Lemonnier, with the majority of the work required at a firm-fixed price.
• KBR's proposal identified U.S. expatriates, third-country nationals, and subcontracted host nationals as the three categories of contract labor and proposed approximately 500 host-country nationals.
• Before award, KBR knew of Djiboutian officials' concerns about local staffing and wage rates and knew about the risk of strikes if a low bid led to wage reductions.
• The contract incorporated KBR's staffing plan and stated that KBR bore the cost and performance risk associated with additional or alternative means of meeting performance objectives.
• Djiboutian officials supported a strike against KBR and demanded that KBR hire 1,037 employees at the predecessor contractor's wages.
• On August 2, 2013, the parties modified the contract to require 1,037 Djiboutians at the predecessor contract's skill level and pay rate.
• Djibouti denied entry to, deported, or imposed visa and work-permit requirements on KBR's third-country nationals, restricting employee travel and replacements.
• The Access Agreement authorized unimpeded access by the government and its contractors to Camp Lemonnier and provided that contractor employees would need passports but not visas.
• The United States and Djibouti executed an Arrangement in Implementation of the Access Agreement on May 1, 2014, and the record contained no evidence that the third-country-national restrictions continued afterward.
• KBR was not a party to the Access Agreement.
• The government consulted with Djibouti through diplomatic and governmental channels concerning the strike and access restrictions.
• The contract contained no express provision requiring the government to procure labor, prevent a Djiboutian labor strike, or ensure that KBR could employ third-country nationals in the numbers it desired.

Parties

Appellant

Kellogg Brown & Root Services, Inc.

Respondent Agency

United States Navy

Contracting Agency

NAVFAC

Contract Number

N62470-13-D-3008