“The critical interests of the United States could be compromised if military contractors were left ‘holding the bag’ for claims made by military and other personnel that could not be made against the military itself,” Titus said in a decision released yesterday in Greenbelt, Maryland."

The remedy for the allegedly injured service members is through military and legislative processes, not the courts, Titus said.

Andrew Farley, KBR’s executive vice president and general counsel, said in an e-mailed statement that the company is pleased by the ruling, especially its emphasis on non-judicial means of redress.

“We look to the courts to continue this positive trend in other pending cases,” Farley said.

Susan Burke, an attorney for the plaintiffs, said in a phone interview that Titus’s ruling will be appealed. She declined to comment further.

A phone call to Halliburton requesting comment on the ruling wasn’t immediately returned.

Contract Terms

The plaintiffs claim that the Houston-based companies ignored the terms of contracts with the U.S. that required safe and environmentally sound waste disposal for troops.

Titus’s decision marks a reversal of an earlier ruling in the same set of cases.

In September 2010, Titus said that KBR, the largest U.S. military contractor, and Halliburton must face the suits and that “courts must be prepared to adjudicate cases that ultimately expose defense contractors to appropriate liability.”

In yesterday’s decision, Titus cited a September 2011 ruling by the U.S. appeals court in Richmond in an unrelated case where the court said a soldier’s claim against KBR for injuries from electric shock was barred by the “political question doctrine.” The doctrine prevents courts from reviewing certain actions taken by other branches of government.

‘Binding Precedent’

That case “creates new, binding precedent with respect to whether this court has subject matter jurisdiction over plaintiffs’ claims,” Titus wrote.

KBR faces other suits alleging harm from its military contracting activities and has said it will appeal an $85 million jury award to 12 U.S. soldiers who claim the company negligently exposed them to toxic chromium dust at a worksite in Iraq in 2003.

The case is In Re KBR Inc. (KBR), Burn Pit Litigation, 09-2083, U.S. District Court for Maryland (Greenbelt).

Current life support for these sites is provided by the U.S. Army Materiel Command’s “LOGCAP IV” (Logistic Civil Augmentation Program), Defense Logistics Agency (DLA), and Army Sustainment Command (ASC) Green Equipment Maintenance contract. These contracts are due to end in December 2013. The State Dept’s intent is to award this contract prior to May 1, 2013 and transition to a new DOS contract no later than September 30, 2013. According to supplemental documents, following the award, the incumbent will require a minimum of 60 days to demobilize. The transition off of the DLA supply chain contract for food will be addressed in the formal RFP.

Background

The mission of the United States Embassy in Baghdad is to represent the United States of America to the Government of Iraq (GOI). The U.S. Ambassador (Chief of Mission (COM)) is the President’s representation to the GOI. The Embassy is located in the International Zone (IZ) in Baghdad. The compound consists of 104 acres and is the largest U.S. Embassy in the world. The Embassy requires life, logistics, operations and maintenance services to support the Embassy, other locations within Baghdad and five or more diplomatic posts and facilities currently located in the provinces of Basrah, Diyala, Erbil, Ninewa and Tamim. This list may be modified during the life of this contract.

The Draft RFP Release dated November 16, and issued for information purposes only listed the following life support services requirements that may include services in the following areas to be specified under each individual task orders:

• Postal Services
• Food Services, to include, procurement of food and supplies, storage, preparation, serving, cleaning of facility
• Waste Management
• Laundry Services
• Fuel Services, to include Procurement and Delivery
• Recreation Services
• Airfield Services to include, air crash and rescue
• Transportation Services
• Warehouse Operations
• Supplemental Staffing and Maintenance Services to Regional Security Office (RSO)

A quick overview on the expected requirement on food services alone is mind boggling for an embassy operation (extracted from draft doc posted at fedbiz):

Baghdad Embassy Compound:

The main dining facility cafeteria area on the Embassy Compound is a 3,000 square meter facility that currently has a feeding and seating capacity of roughly 2,500 personnel. This area does not include the various refrigerated vans and containers used for storage of frozen, chilled and dry storage of food, or supplies. [...] Additional feeding capacity projects are being contemplated to accommodate personnel surges. The maximum occupancy on the BEC is 2600, while Camp Condor houses 1129 and has its own dining facility.

Local Nationals (LNs) are only entitled to lunch meals, not breakfast or dinner. The largest feeding requirement occurs during lunch time during week days as LN direct hire personnel are entitled to eat lunch meals. Three snack bar operations located on the Embassy compound (1 within Annex 1, 1 in Annex 2, and 1 in the Chancery) alleviate the feeding demand during the lunch meal at the cafeterias. Two of the snack bar operations serve only cold sandwiches and hot soup. The Annex 1 snack bar is equipped with a grill that provides a hot entre lunch item 5 days a week: Sunday through Thursday.

Baghdad Diplomatic Support Center (BDSC):

This is a 350-acre State Department-managed facility located next to the Baghdad International Airport (not within the IZ). BDSC houses 41 individual agencies or groups, totaling approximately 1600 personnel. The BDSC dining facility is a 2244 square meter facility that serves 1800* residents and transient personnel three meals per day. A grab-in-go (soup and sandwich bar) is open 14 hours daily (0830 – 2230). The dining area is 1182 m2, kitchen 531 m2 (warehouse 531 m2, which is connected to the kitchen) and serving lines 55 linear meter.

Erbil Diplomatic Support Center (EDSC):

This is a 2760-acre compound with a an office building, gym, warehouse, motor vehicle center, 800-plus containerized housing units, a fire station and other facilities. The EDSC DFAC is a 915 square meter facility that serves 790 residents three meals per day.

U.S. Consulate General Basrah:

Located on 53 acres, with the Consulate General building occupying 119 acres and the Air Hub occupying 34 acres. The Basrah dining facility currently serves 790 residents three meals per day.