Federal Circuit Nullifies Sum Certain Contract Disputes Act Jurisdictional Defense

• Published date: 25 August 2023
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Edward Arnold and Zachary F. Jacobson

In ECC Int'l Constructors, LLC v. Sec'y of Army, No. 2021-2323, 2023 WL 5355302 (Fed. Cir. Aug. 22, 2023), the U.S. Court of Appeals for the Federal Circuit considered whether the Federal Acquisition Regulation ("FAR") requirement that contract claims submitted to the contracting officer under the Contract Disputes Act ("CDA") state a "sum certain"'i.e., specify the precise dollar amount sought as relief'is jurisdictional. In a resounding victory for contractors, the Federal Circuit held that, although the FAR requirement to state a sum certain remains mandatory for a valid CDA claim, such a requirement is not a prerequisite to a court taking jurisdiction, i.e., considering the merits, and is no longer subject to a Government jurisdictional motion. Moreover, the Government's failure to timely raise lack of sum certain as a defense potentially forfeits its right to challenge this element of a contractor's claim. Importantly, this ruling could mark the first falling domino in what may be the beginning of the end for jurisdictional challenges to CDA claim requirements.

The Claim and Board Proceedings

This claim appeal arose out of a contract awarded by the U.S. Army Corps of Engineers to ECCI in 2010 to design and build a military compound in Afghanistan. After ECCI experienced government-caused delays, it submitted a Request for Equitable Adjustment followed by a claim, which ECCI subsequently appealed to the Armed Services Board of Contract Appeals ("Board") on a deemed denial basis. Six years later, after a series of unsuccessful settlement negotiations, the parties engaged in discovery and held a nine-day hearing on the merits. Three months after the hearing and during post-trial briefing, the Government moved to dismiss ECCI's claim for lack of jurisdiction on the basis that distinct portions of the claim were based on different operative facts, and therefore were actually separate claims, each requiring its own sum certain. In granting the Government's motion to dismiss, the Board found that "ECCI's claim submission to the contracting officer sets forth a bottom line sum certain, but does not set forth sums certain for any of the discrete sub-claims that comprise that submission."¹ ECCI filed a motion for reconsideration, which the Board rejected on July 15, 2021. ECCI appealed to the Federal Circuit.

The Federal Circuit Concluded that the Sum Certain Requirement is Nonjurisdictional

The Federal Circuit provided a framework for examining whether a...