The Armed Services Board of Contract Appeals in ECC International Constructors, LLC (ASBCA No. 59643 November 9, 2021) issued a partial summary judgment order dismissing several of the contractor's claims for lack of a sum certain. In its claim submission to the contracting officer, the contractor sought $3,767,856.32 for extra work. The claim was broken down into 23 direct cost items, totaling $3,212,831.76, before adding general and administrative costs, fees and bond to arrive at the total claim. The government challenged nine of the direct cost items on the basis that they failed to specify a sum certain.
The Board granted the government's motion, noting that the validity of a contractor's submission as a legitimate claim is determined on a case-by-case basis. The jurisdictional standard must be applied to each claim, not an entire case; jurisdiction exists over claims that satisfy the requirements of an adequate statement of the amount sought and an adequate statement of the basis of the request. The requirement—that a claim adequately specify both the amount sought and the basis for the request—means that requests must involve separate claims if they either request different remedies or assert grounds materially different from each other, factually or legally. This approach services the objective of allowing the contracting officer an ample, pre-suit opportunity to rule on a request.
The Board then went on to provide examples of different types of claims. Claims seeking different types of remedy, such as expectation damages versus consequential damages, are different claims. Presenting a materially different factual or legal theory (e.g., breach of contract for not constructing a building on time versus breach of contract for constructing with the wrong materials) creates a different claim.
Consequently, a contractor's monetary claim must not only state a bottom-line sum certain for the overall claim,but it must also state a sum certain for any distinct claim component within the overall claim. The Board found that the contractor had presented to the contracting officer as single claims, claims of more than one set of materially different, unrelated facts. In so doing, the contractor did not provide the contracting officer with separate sums certain for each "sub claim." Consequently, the Board did not possess jurisdiction to entertain these claims and thus these claims were dismissed.
The teaching lesson from this decision is that when a contractor has several change proposals which have been rejected, the contractor should take care to specify the basis for entitlement and itemize the sum sought for each such proposal in its claim submission.