For years, the Federal Circuit said the sum certain requirement for a CDA claim was jurisdictional. But now, in light of recent U.S. Supreme Court precedent, the Federal Circuit has changed its mind.
ECC International Constructors, LLC v. Secretary of the Army, Fed. Cir., 2021-2323
- ASBCA Proceedings – The contractor submitted a claim, alleging various government-caused delays. The agency denied the claim. The contractor appealed to the ASBCA. The parties spent the next six years attempting to settle, but to no avail. The board held a six-day hearing. While the parties prepared post-hearing briefs, the government moved to dismiss the appeal for lack of jurisdiction. The government contended the claim lacked a sum certain. The board granted the motion.
- Recent Supreme Court Precedent – On appeal, the Federal Circuit noted its prior cases held the sum certain requirement was jurisdictional. But in recent years, the U.S. Supreme Court has provided additional guidance to clarify what rules should be jurisdictional. Under that precedent, a court must inquire whether Congress has clearly stated that a statutory requirement is jurisdictional. Rules outside of statutory text are not jurisdictional.
- CDA Says Nothing About Sum Certain – The right to submit a claim to the government is governed by the Contract Disputes Act. That Act, however, says nothing about a sum certain. Thus, Congress had not provided a clear statement on the sum certain requirement. Indeed, courts have simply imported the sum certain requirement from the FAR. The sum certain requirement is thus not jurisdictional.
- Sum Certain Requirement Still an Element of Claim – While the court held the sum certain requirement is not jurisdictional, it’s still an essential element of a valid claim. Thus, failure to include a sum certain, while not a jurisdictional defect, will still result in failure to state a claim.
- Sum Certain Requirement Can be Forfeited – Because the sum certain requirement is not jurisdictional, an objection based on the requirement can be forfeited if a party waits too long invoke the requirement. Here, the government waited through years of settlement negotiations and a hearing before invoking the rule. The  Federal Circuit remanded back to the ASBCA to determine whether the government forfeited the sum certain defense.
The contractor is represented by Roy Dale Holmes and Michael H. Payne of Cohen Seglias Pallas Greenhall & Furman. The government is represented by Corrine Anne Niosi, Brian M. Boynton, and Patricia M. McCarthy of the Department of Justice.
--Case summary by Craig LaChance, Senior Editor
Federal Circuit - ECC International Constructors