A Contract Disputes Act (CDA) claim meets the mandatory “sum certain” requirement when the contractor has submitted to the contracting officer (CO) a clear and unequivocal statement that gives the CO adequate notice of the basis and amount of the claim. While the CDA provides no definition of a claim, the Federal Acquisition Regulation (FAR) § 2.101 defines a government contract “claim” as a written demand or assertion by a contracting party seeking, as a matter of right, the payment of money in a “sum certain.” This “sum certain” requirement contained within the FAR definition of a claim was considered jurisdictional until the Federal Circuit’s relatively recent decision in ECC International, LLC v. Secretary of the Army, 79 F.4th 1364 (2023). In the much publicized ECC decision, the Federal Circuit held that the “sum certain” requirement was not a jurisdictional prerequisite for a CDA claim but a mandatory claim-processing rule that claimants must follow. Since parties may raise jurisdictional issues at any time during appeals litigation, the ECC decision has practically limited the government’s “sum certain” challenges to motions for dismissal for failure to state a claim upon which relief may be granted, brought at the outset of the appeals litigation.
In ASBCA 63522, an opinion issued on February 14, 2024, the Armed Services Board of Contract Appeals (ASBCA) resolved one such motion to dismiss for a failure to state a sum certain in the contractor’s favor. The contract underlying the claim was a Blanket Purchase Agreement (BPA) issued by the U.S. Army to acquire material-handling equipment in Erbil, Iraq. The BPA permitted the Army to place individual call orders, each considered a separate contract. In its claim to the CO, the contractor sought an estimated $120,000 for the combined value of the two trucks that went missing in Syria. During the appeals litigation at ASBCA, the contractor provided a breakdown of the separate amounts sought for each vehicle, with an estimated value of $50,000 for a missing black water truck and an estimated $70,000 for a missing fuel truck. The contractor also requested $333,000 in unpaid lease payments for the two trucks between September 2017 and October 2022. Notably, the contractor submitted a single certified claim for $453,000 for the two trucks leased by the Army. The CO issued a final decision denying the entirety of the claim, and the contractor appealed the CO’s final decision at the ASBCA in a timely manner.
As noted, the contractor had packaged its claim as a single document requesting compensation under the BPA itself without identifying which call order corresponded to which leased truck. Consequently, the government raised a challenge on the basis that the contractor failed to meet the mandatory sum certain requirement. During the ASBCA litigation, the government alleged that the contractor had asserted two distinct claims under separate contracts and did not provide a sum certain for each distinct claim. Specifically, in its motion to dismiss for failure to state a claim, the government argued that the contractor sought costs arising from two vehicles leased under two separate contracts, thereby giving rise to two claims. In response to the government’s motion to dismiss, the contractor argued that its overarching claim specified a sum certain for each piece of equipment at issue – thereby satisfying the sum certain requirement.
The ASBCA began its analysis by stating that a dismissal based on a failure to state a claim is appropriate when the facts asserted in the complaint do not entitle the contractor to a remedy. The Board reminded the parties that for determining whether an appeal sufficiently stated a claim upon which relief could be granted, the primary document to be reviewed was the contractor’s claim to the CO rather than its complaint filed at the Board. The ASBCA also recognized that the sum certain requirement was mandatory but not jurisdictional and that the Board was required to decide on the merits of an appeal whether the claimant met the sum certain requirement in a particular case. In this case, the contractor submitted a single claim stating the total amount sought for two types of compensation, lease payments, and replacement costs of the two missing trucks. The ASBCA ruled that the contractor had satisfactorily provided a “sum certain” for the total amount sought. Furthermore, this amount provided an adequate notice of the basis and amount of the total claim to the government – thereby satisfying the mandatory “sum certain” requirement. However, it was unclear to the Board whether the Army leased the two missing vehicles under the same or different contracts. Therefore, the Board ruled that it lacked sufficient information to determine whether the contractor’s claim was one claim arising from the same operative facts or multiple distinct claims. Since this determination involved a factual dispute for the ASBCA to resolve on the merits, the Board denied the government’s motion to dismiss at this preliminary stage of the litigation.
It is unlikely that the issue of two or more distinct claims each not meeting the sum certain requirement was raised by the CO in his final decision denying the contractor’s claim in this case. Indeed, had the CO identified that the contractor’s overarching claim should have been multiple distinct claims, he should have required the contractor to provide a breakdown of the separate amounts sought for each distinct claim to resolve the alleged “sum certain” issue. On the contrary, the ASBCA decision indicated that the government argued for the first time on appeal that the contractor’s claim actually involved four distinct sub-claims. Therefore, while it may seem counterintuitive and inefficient that the government would raise the “sum certain” requirement for the first time during appeals litigation, contractors should nevertheless be prepared for such an eventuality, especially in cases where it is not clear whether the contractor should present one or several claims involving the same or similar operative facts.
This Federal Contract Claims Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
