Kellogg Brown & Root Services, Inc.

Material Facts

• The Army Corps of Engineers and KBR executed Contract No. W912GB-13-C-0011 for construction of an Aegis Ashore Missile Defense System site at Deveselu Air Base in Romania.
• The contract was for a firm, fixed-price amount and included milestone dates, a September 2015 completion deadline, and liquidated-damages provisions.
• Modification No. P00007 accelerated efforts, increased contract funding, and described the new payments as provisional and contingent on KBR demonstrating excusable delays.
• The Army Corps of Engineers added a total of $27 million to the contract funding through later modifications.
• KBR substantially completed the project on December 19, 2015.
• KBR's certified claim sought a time extension and compensation based on alleged government delays, constructive and written changes, and accelerated performance.
• The July 1, 2020 contracting officer's decision denied KBR's certified claim, stated that provisional payments were subject to recoupment or offset, and reserved the right to collect liquidated damages in a future decision.
• The July 1, 2020 decision did not state a dollar figure for liquidated damages owed.
• The December 10, 2020 demand letters sought repayment of provisional acceleration payments and liquidated damages.
• The liquidated-damages demand letter asserted that KBR owed $6,398,210 and that $2,421,685 would be offset from unpaid contract amounts.
• Neither demand letter included notice of CDA appeal rights.
• KBR timely appealed both demand letters and requested deferral of collection pending resolution of its Board appeal.

Parties

Appellant

Kellogg Brown & Root Services, Inc.

Respondent Agency

United States Army Corps of Engineers

Contracting Agency

Army Corps of Engineers

Contract Number

W912GB-13-C-0011