“Two Roads Diverged in a Yellow Wood . . .”: Uncertainty as to Alternative Sums In Claim Not Fatal to Appeal; Appeal of Constellation NewEnergy, Inc., ASBCA No. 62518

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Government’s motion to dismiss appeal is denied. The government argued the appeal should be dismissed because the contractor had not asserted a sum certain in its claim. But the board found that it could discern a sum. The contractor had asserted two alternative amounts. The agency’s final decision had eliminated one of the alternatives, so the remaining alternative sum was necessarily the amount claimed.

Constellation New Energy, Inc. (CNE) had a contract with the Navy to provide energy conservation measures at a naval base. During performance CNE presented the Navy with a change order request, seeking additional money for work that had already been performed as well as future work. The change request presented the Navy with two alternatives. Option A, which included more energy conservation measures, was more expensive than Option B.

The Navy concurred with the some of the work in the change order but did not appear to affirmatively accept either option. CNE submitted the change order request as a certified claim. The Navy granted the claim in part but only addressed Option B. CNE appealed to the ASBCA.

The Navy moved to dismiss the appeal, arguing that CNE’s claim, arguing that CNE’s had failed to claim a sum certain.

The FAR requires that a claim must be in writing and must demand a sum certain. The ASBCA lacks jurisdiction over an appeal of a claim that omits a sum certain. But the board noted that it is sufficient, for purposes of jurisdiction, if the amount claimed can be calculated from the claim. In particular, the board noted, a contractor can present alternatives that could each be considered a sum certain. The question, when determining whether a contractor has asserted a sum certain, is whether the contracting officer understood what had been submitted.

Here, CNE’s claim contained alternatives, which each stated a certain sum. While CNE would have been wiser to specify in its claim that it was only seeking Option B, the contracting officer recognized in her final decision that Navy had eliminated Option A and thus only Option B remained open for consideration. This was enough for the board to assert jurisdiction.

CNE is represented by William J. Spriggs of Spriggs Law Group. The government is represented by Craig D. Jensen, Cindy M. Hurt, and Matthew D. Bordelon of the Navy.

ASBCA - Constellation