Claim May Have Had “Monetary Consequences”, But the Contractor Didn’t Need to Assert a Sum Certain

The government moved to dismiss an appeal for omitting a sum certain. The ASBCA denied the motion. A claim may have monetary consequences but that doesn’t mean a sum certain is always required.

Appeal of J&J Maintenance, Inc., d/b/a J&J Worldwide Services, ASBCA No. 63013

• The Claim – The parties disputed whether the contractor could invoice the government for a subcontractor’s markup on materials. The contractor submitted a claim, asking the agency to confirm the contractor could include the markup on invoices. The claim didn’t include a request for monetary compensation. The agency denied the claim.
• Claim Was Nonmonetary – The contractor appealed to the ASBCA. The government moved to dismiss for failure to state sum certain. The board found a sum certain unnecessary. The board has jurisdiction to decide nonmonetary claims, which do not require a sum certain. To qualify as nonmonetary, the requested relief must have a significant consequence other than the recovery of money. Here, the contractor established that determination of the markup issue could cause it to change its approach to using subcontractor. This was a nonmonetary consequence that negated the sum certain requirement.
• Monetary Consequence – The government argued resolution of the claim would still have financial consequences—it would result in potential cost savings for the contractor. In light of this monetary impact, the government reasoned, a sum certain was required. The board, however, found the government had it backwards. Every claim ultimately has a monetary consequence; indeed, contractors wouldn’t bring claims if they had no financial impact. But the test for nonmonetary is not whether it will have monetary consequences. Rather, it is whether the claim will have a significant nonmonetary impact. The contractor had established the nonmonetary impact.

J&J is represented by Stephanie Magnell, Adam Lasky, and Anthony J. LaPlaca of Seyfarth Show LLP. The government is represented by Betsy E. Dulin of the Defense Commissary Agency.

–Case summary by Craig LaChance, Senior Editorpdf-embedder