Kellogg Brown & Root Services, Inc.

Material Facts

• The Corps of Engineers and KBR executed Contract No. W912GB-13-C-0011 on July 9, 2013, for construction of an Aegis Ashore Missile Defense System site in Romania.
• The contract was for a firm, fixed-price amount and KBR substantially completed the project on December 19, 2015.
• The Corps alleged eight material misrepresentations in KBR’s proposal and asserted that the agency relied on them in awarding the contract and defending the GAO protest.
• The alleged misrepresentations included representations concerning firm subcontractor and vendor quotes, subcontract terms, the scope and value of USIDC’s work, self-performance of 25 percent of the work, submission of a Technical Assistance Agreement, Romanian labor rates, the availability of the proposed Quality Control Manager, and small-business subcontractor bids.
• The contracting officer knew of seven of the alleged misrepresentations in 2013 and 2014 while performance was ongoing and knew of the other alleged misrepresentation by 2017.
• The Corps did not attempt to void or default the contract when it learned of several alleged misrepresentations during performance.
• The contract included a provision permitting liquidated damages for failure to make a good faith effort to meet small-business subcontracting-plan requirements.
• KBR submitted a certified claim that the Corps denied, and the Corps later issued two demand letters seeking liquidated damages.

Parties

Appellant

Kellogg Brown & Root Services, Inc.

Respondent Agency

United States Army Corps of Engineers

Contracting Agency

United States Army Corps of Engineers

Contract Number

W912GB-13-C-0011