Use It or Lose It: ASBCA Finds That the Government Forfeited its Sum-Certain Defense

In JE Dunn Construction Company, ASBCA No. 63183, the Armed Services Board of Contract Appeals (“ASBCA”) issued its first published decision applying the Federal Circuit’s recent holding that the FAR sum-certain requirement for Contract Disputes Act claims is not jurisdictional. The Board held that, because the government did not raise the issue until after a hearing on the merits, the government forfeited its right to challenge the contractor’s satisfaction of the sum-certain requirement.

As we previously discussed, in August 2023, the decision of the U.S. Court of Appeals for the Federal Circuit in ECC Int’l Constructors Inc. v. Army reversed longstanding precedent that a claim must state a “sum certain” for a Board of Contract Appeals or the Court of Federal Claims to possess jurisdiction over an appeal. Under ECC Int’l, while the sum-certain requirement remains “a mandatory rule that claimants must follow,” the rule is not jurisdictional, and challenges asserting non-compliance can be waived if not timely asserted.

In JE Dunn, a contractor appealed a contracting officer’s final decision denying a claim for damages in the amount of $949,054 and a compensable time extension, resulting from three government-directed changes and Prompt Payment Act violations. At a hearing on the merits, the Board, sua sponte, questioned whether each of the three claim aspects required a separate sum certain. Notably, the hearing took place in February 2023, prior to the Federal Circuit’s ECC Int’l decision.

In its post-hearing brief, the government moved to dismiss the appeal for lack of jurisdiction, for the first time arguing that “there is no sum certain because JE Dunn presented three distinct claims while stating only one dollar amount.” In its decision denying that motion, the Board stated that the government “had the opportunity—on its own initiative or in response to the Board’s having raised the issue—to take the position before or during the hearing on the merits that JE Dunn had not satisfied the sum-certain requirement.” The Board held that, by waiting until after the hearing on the merits to raise the issue, the government forfeited its argument that JE Dunn’s claim did not satisfy the sum-certain requirement.

JE Dunn is the first published ASBCA decision applying the ECC Int’l holding that the sum-certain requirement is not jurisdictional. As we predicted, this early decision demonstrates the importance of identifying and preserving defenses in litigation, underscoring that the failure to timely raise a defense can result in forfeiture. Practically, this decision also cuts off at least one avenue by which the government might otherwise seek dismissal late in litigation and without warning.

Although it is not a jurisdictional issue after ECC Int’l and JE Dunn, the sum-certain requirement remains in effect. As always, contractors should invest in thorough and thoughtful preparation of their claims to ensure compliance with all requirements and to reduce potential risks and challenges in litigation.