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The contractor’s claim sought a range of damages between $36 million and $41 million. The government moved to dismiss, alleging the claim didn’t assert a sum certain. The contractor argued it needed expert discovery to finalize the damages amount. The COFC granted the government’s motion to dismiss. The court reasoned the contractor had it backwards. The CDA requires a contractor to present a sum certain before filing suit. A claimant cannot file suit and then try to prove a sum certain through discovery.

CanPro Investments, Ltd. v. United States, COFC No. 16-268C

Background

CanPro Investments entered a lease with GSA. The space was used the Social Security Administration (SSA) in Florida. But during the court of lease, another SSA office in the vicinity closed. This meant that traffic as at CanPro’s property picked up dramatically.

CanPro submitted a claim to GSA, alleging the extra traffic damaged the property. GSA denied the claim. CanPro filed suit with the Court of Federal Claims, alleging various contract theories. The court dismissed some of CanPro’s theories. Nevertheless, the court found the lease obligated SSA to limit the number of daily visitors.

While its remaining theories were pending in court, CanPro submitted a second claim seeking additional economic losses and asserting a superior knowledge theory. GSA denied those claims. CanPro amended its COFC complaint to add the additional denied claims. The government filed another motion to dismiss.

Analysis

Acts Caused by Third Parties

The government argued CanPro lacked standing. To demonstrate standing, a plaintiff must show it suffered an injury that’s causally connected to the defendant’s conduct. The government reasoned CanPro’s injury was not causally connected to the government’s actions. Rather, its injuries were caused by the third-party visitors to the SSA office.

The court opined this was a superficially compelling argument. Still, the court noted it had previously found SSA had a duty to restrict visitors to normal and customary use. The government could not disclaim, as a matter of law, damages from excess attendance.

Sum Certain

The claim CanPro submitted to GSA for economic loss sought a range of damages—i.e. $36 million to 41 million. The government argued the court lacked jurisdiction because the claim had not asserted a sum certain. CanPro argued it needed more time and additional discovery before it could know the extent of its damages.

The court opined that CanPro had it backwards. The sum certain requirement exists to give the contracting officer notice and an opportunity to pay a “sum certain.” A claimant cannot wait for discovery to prove a sum certain. Thus, the claim for economic loss was defective. The court dismissed it for lack of jurisdiction.

Superior Knowledge

In its second claim, CanPro asserted a superior knowledge theory. It contended the government knew it was closing local SSA offices and it knew these closures would increase traffic at CanPro’s property. The government said these allegations failed to state a claim. The court sided with CanPro. The complaint set forth allegations sufficient to demonstrate the SSA’s plans to close offices could qualify as unavailable information vital to performance.

CanPro is represented by Marcos Reilly of Hinshaw & Culbertson LLP. The government is represented by Amanda L. Tantum, Brian M. Boynton, and Martin F. Hockey, Jr. of the Department of Justice as well as Claudia Burke and Michael Converse of the General Services Administration.

–Case summary by Craig LaChance, Senior Editor