While the Contract Disputes Act (CDA) does not define a claim, the Federal Acquisition Regulation (FAR) § 2.101 defines a monetary 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.” Since the sum certain requirement is not included in the CDA, the Federal Circuit has held that the requirement is non-jurisdictional. Stated another way, a CDA claim does not need to include a sum certain for the Court of Federal Claims (COFC) or a relevant Board of Contract Appeals to exercise jurisdiction over it. Instead, the sum certain requirement is considered an element of a claim for relief that the contractor must satisfy in order to recover. The distinction is important because parties may raise a motion challenging the Court’s or the Board’s jurisdiction at any time. Meanwhile, if a party presents a defense based on the sum certain requirement after litigation has far progressed, it may be deemed to have forfeited the defense entirely. Therefore, the sum certain requirement is a mandatory but non-jurisdictional claim processing rule that is subject to forfeiture. It is somewhat unclear exactly when the claims litigation progresses to a point where a party loses the right to challenge a deficient sum certain. However, the Federal Circuit has indicated that forfeiture may apply as soon as the merits of the case are evaluated, including after the summary judgment stage.

Contractors may sometimes encounter unforeseen conditions that make a government contract commercially impracticable because performance would cause extreme and unreasonable difficulty, expense, injury, or loss. Unless the contractor has assumed the risk of the unforeseen condition, a finding of commercial impracticability excuses the contractor from performing. In other situations, commercial impracticability may be treated as a constructive change, warranting an equitable adjustment due to the substantial, unforeseen costs imposed upon the contractor. Whether the performance of a contract would be commercially impracticable is a question of fact to be resolved on a case-by-case basis. Therefore, adjudicative forums have consistently declined to adopt a bright-line rule providing that a certain percentage of cost overrun automatically constitutes commercial impracticability. However, due to the potential for abuse, the standard for establishing commercial impracticability is challenging to meet, and contractors are not entitled to relief merely because they are unable to sustain their profit margins.

In Armed Services Board of Contract Appeals (ASBCA) No. 63615, a decision issued on May 19, 2025, the Board granted the agency summary judgment on the issue of commercial impracticability when the contractor suffered a 37% cost overrun on a construction contract. The U.S. Army Corps of Engineers (USACE) issued the underlying contract for construction work at Placement Area No. 10 in the Corpus Christi Ship Channel. The total adjusted contract price following all modifications was $11,046,369.04. During performance, the contractor encountered excessive erosion on the south side of the placement area. Subsequently, the work to address the erosion was added to the contract via two bilateral contract modifications addressing the inland and shoreline sides of the placement area, totaling $909,332.04. However, even after the modifications, the contractor continued to incur costs and expend additional resources. A year after the contract was deemed substantially complete, the contractor submitted certified claims asserting entitlement to roughly $3,560,723.65 in cost overruns for work associated with the first modification and $447,522.64 in cost overruns for the second modification. These claims were denied by the contracting officer (CO) in their entirety.

Firm-fixed-price contracts place maximum risk and full responsibility upon the contractor for all costs and resulting profit or loss incurred in performing a government contract. Fixed price contracts provide for a price that is not subject to any adjustment based on the contractor’s cost experience. Meanwhile, fixed-price contracts with economic price adjustments provide for upward or downward revisions of the stated contract price upon the occurrence of specified contingencies. There are three general types of price adjustments. First, price adjustments based on established prices provide for increases or decreases from an agreed-upon level in published prices of specific items. Second, adjustments based on actual costs of labor or materials contemplate increases or decreases in the specified costs of labor or materials actually experienced by the contractor during contract performance. Finally, adjustments based on labor or material cost indexes provide for increases or decreases in labor or material cost standards or indexes identified explicitly in the contract. In fixed-price contracts that do not provide for economic price adjustments, the contractor assumes the risk of unexpected costs not attributable to the government.