Government’s motion to dismiss appeal for lack of jurisdiction is granted. The government alleged the contractor had failed to state a sum certain for its various delay claims. The board agreed, noting that the claim listed different categories of delay but it did not list a sum certain for each category. Instead, it simply listed a bottom-line total for the claim. A contractor’s monetary claim must state a sum certain for each distinct component of the overall claim.
ECC International Constructors, LLC had a contract with the Army Corps of Engineers to design and build a military compound in Afghanistan. ECC submitted a claim to the Corps seeking over $13 million in alleged government delay. The claim asserted three categories of delay: (1) changes in security requirements, (2) delayed review of design submissions, and (3) directives to perform additional work or change requirements. The claim, however, did not break down the $13 million by delay category or event.
The government denied the claim, and ECC appealed to the ASBCA. The government then moved to dismiss. The government argued that the claim actually asserted multiple claims for delay. And the operative facts for each claim was separate and independent of the other claims. Without a sum certain for each separate claim, the claim was never properly submitted to the contracting officer. As result, the board lacked jurisdiction over the appeal.
The board noted that the jurisdictional standard for an appeal must be applied to each claim, not an entire case; jurisdiction exists only over those claims that satisfy the CDA. The word “claim” does not mean the whole case submitted by a contractor. Rather, it means each claim for money that is part one divisible case. A case will involve separate claims when the contractor asserts different grounds of recovery that are factually or legally distinct. A contractor’s monetary claim must state a sum certain for any distinct component within the overall claim.
Here, ECC’s submission contained a bottom-line sum certain, but it did not set forth sums for any of the sub-claims that comprised the submissions. While ECC had asserted different categories of claims, each of those categories relied on its own set of operative facts, and ECC had not assigned a sum to each category.
ECC argued that the sum certain requirement is met if the sum is readily calculable by simple arithmetic. ECC contended that its costs could be calculated by multiplying the number of days of delay by the applicable rate at the time the delay occurred.
But the board found that the calculation was not so clear cut. ECC’s claim did not identify the specific rates that applied to each component of its claims. ECC had not even identified those rates in responding to the government’s motion, and it had not performed the calculation itself.
ECC is represented by R. Dale Holmes and Michael H. Payne of Cohen Seglias, Pallas Greenhall & Furman PC. The government is represented by Michael P. Goodman, Sarah L. Hinkle, Geoffrey A. Mueller, Matthew Tilghman, and Kathryn G. Morris of the Army Corps of Engineers.