Did this Claimant Assert One Overarching Delay Claim or Seven Distinct Claims?

The claimant appealed a delay claim to the ASBCA. The government moved to dismiss. The government argued the single delay claim was really seven separate claims, and the claimant had not submitted a sum certain for each separate claim. The board rejected the government’s argument. The alleged seven claims were simply seven events leading to one overarching delay. The claimant had submitted a sum certain for its single delay claim.

Appeal of Fidelity & Deposit Company of Maryland, ASBCA No. 63278

Background

The Army Corps of Engineers awarded a task order to ECC Constructors. The task order was for construction of enlisted quarters and officer dining facilities as a naval base.

But the Corps terminated ECC’s task order for failure to meet deadlines. ECC’s surety, Fidelity & Deposit Company, entered a takeover agreement. Fidelity selected, and the Corps approved, Vertex companies as the completion contractor.

Vertex began performing. But the Corps told Vertex to stop work due to issues with a dig permit.

Over the next several months Vertex and the Corps attempted to resolve the dig permit issue.  The permit problems were solved. Vertex went back to work. Fidelity submitted a claim to the Corps seeking damage for delay caused by the permitting issues. The Corps denied the claim. Fidelity appealed to the ASBCA

Analysis

The Corps moved to dismiss the appeal. The Corps argued Fidelity’s claim was actually seven distinct claims. The Corps reasoned Fidelity had failed to submit a sum certain for each of the seven claims.

The board didn't find the Corps’ argument compelling. While the Corps thought Fidelity had asserted seven claim, the board thought Fidelity had submitted a single “garden variety” delay claim. The seven alleged claims were really seven separate events that were all part of a single delay claim. Fidelity was not seeking delay damages for each separate event. It was simply seeking for damages for the single delay caused by the seven events. Fidelity had asserted a sum certain for its single delay claim, so the board denied the Corps’ motion.

--Case summary by Craig LaChance, Senior Editor