Claimant Said Its Damages May Need to Be Adjusted. Did this Qualification Mean the Claimant Had Not Submitted a Sum Certain?

The contractor included a footnote in the claim that said the amount of damages may need to be adjusted. The government argued this footnote invalidated the claim’s sum certain. The ASBCA, however, said a claimant can inform the agency that its claim may need to be adjusted without negating the certainty of the sum claimed. 

Appeals of A4 Construction Company, Inc., ASBCA Nos. 63252, 63456, 63626 

• Claim – The contractor submitted a claim seeking reimbursement for COVID-related costs, extra work, differing site conditions, flooding, and an earthquake. Some subparts of the claim included a specific monetary demand while others—the earthquake, flooding—did not. The claim did, however, include a total amount claimed of $5.5 million. The claim also included a footnote, stating the claim may need to be adjusted to prevent overpayment. The agency denied the claim. 
• Qualified Sum – The contractor appealed. The agency moved to dismiss. The agency argued the footnote in the claim had qualified and thus invalidated the sum certain. The board, however, noted that it has previously held that an indication that a claim may need future adjustment does not negate the sum certain. Here, the footnote did not undermine the claim’s specific dollar amount; it merely informed the contracting office of the potential for future adjustment. A contractor may amend its claim by increasing or decreasing the amount on appeal. 
• Miscalculations – The government argued the claim failed to state a sum certain because it contained mathematical inaccuracies. For instance, the calculation for delay damages was off. But the board didn’t see a problem. A claim that is readily calculable by simple arithmetic satisfies the sum certain requirement. The claimant may have miscalculated, but the amount claimed was readily calculable from the figures provided in the claim. 
• Board Strikes Portion of Claim – The board, however, struck subparts of the claim that did not state any monetary demand. These claims—the earthquake, the flood, and COVID costs—arose from a distinct set of operative facts than the claims that stated a monetary demand. 

The contractor is represented by Denver C. Snuffer, Jr. Of Nelson, Snuffer, Dalhe & Poulsen PC. Michael P. Goodman, Jacob W. Harberg, and Thomas Tracy of the Army Corps of Engineers represent the government. 

–Case summary by Craig LaChance, Editor in Chief