Failure to Include a Sum Certain Costs Contractor: Takeaway From the ASBCA's Dismissal in Samho Enterprise

The U.S. Armed Services Board of Contract Appeals recently reinforced that a "sum certain" is necessary to trigger ASBCA jurisdiction over an appeal. The ASBCA's decision in Samho Enterprise, ASBCA 63587, provides a helpful reminder that contractors must avoid qualifying language when submitting a certified claim under the Contract Disputes Act.

The Samho Enterprise Case

In Samho, the U.S. Army (the "Government") awarded to Samho Enterprise ("Samho"), a fixed price contract for repair and maintenance of food service equipment at restaurants in the Republic of Korea. The contract had a base year of performance, as well as four option periods to be exercised after completion of the first year. Toward the end of the base year, the Government notified Samho that it would not exercise any of the option years on the contract.

In response, Samho issued a certified claim to the Government, asserting that the Government's failure to exercise the option periods constituted a breach of contract. Samho requested the Government rescind its decision, and exercise at least one option year. Alternatively, Samho asserted entitlement to "no less than" 427,500,000 KRW in damages should the Government refuse to exercise the additional year. The Contracting Officer denied the claim. In April 2023, Samho submitted a timely appeal to the U.S. Armed Services Board of Contract Appeals (the "Board").

Appeal to the ASBCA

Following the appeal, the Government filed a motion to dismiss for failure to state a claim upon which relief could be granted. In particular, the Government asserted that the modifying, "no less than" language contained in Samho's claim was insufficient to establish a sum certain for the damages sought by the contractor. The Board agreed.

The Board noted that the sum certain requirement ensures that a Contracting Officer has "adequate notice of the basis and amount of the claim." The requirement further allows the Government to properly evaluate any potential liability and conduct informed decision-making. As such, the Board reaffirmed that a sum certain is a mandatory element of a claim under the Contract Disputes Act ("CDA"), as well as the FAR. Moreover, ASBCA precedent has previously established that qualifying language, such as "no less than" or "in excess of" when asserting damages as part of a claim, does not establish a sum certain for purposes of the CDA.

Thus, the Board ruled that Samho's claim for "no less than" 427,500,000 KRW failed to satisfy CDA requirements. Rather, the Board determined that Samho's use of modifying language did not provide the Contracting Officer with sufficient notice of the damages sought by the contractor. As a result, the Board found Samho's claim procedurally deficient and dismissed the appeal in August 2025.

Notably, Samho's failure to provide a sum certain did not act as a complete bar to the Board's jurisdiction over its claim for damages. However, the lack of a sum certain required the Board to dismiss the appeal without prejudice. The dismissal allows Samho to correct the deficient language and re-submit its claim with the Government.

Takeaway

The Samho decision demonstrates the critical importance of including a sum certain in a certified claim, as well as the practical impact of a contractor's failure to satisfy this requirement. For instance, Samho filed its appeal more than two years prior to the ASBCA's dismissal thereof. In line with case precedent, a contractor is entitled to correct any deficient sum certain and resubmit its certified claim after the Board's dismissal. However, doing so will undoubtedly require the unwanted expenditure of additional resources (time, money, etc.) to recover any damages to which the contractor is otherwise entitled.

If you have any questions relating to the ASBCA's dismissal of Samho Enterprises, please contact our construction and government contracts group.