In ECC Int’l Constructors Inc. v. Army, No. 2021-2323 (Fed. Cir. Aug. 22, 2023), the Court of Appeals for the Federal Circuit overturned longstanding precedent by holding that the requirement to state a “sum certain” in a claim submitted under the Contract Disputes Act (CDA) is not a jurisdictional requirement. The Court based its decision on recent Supreme Court guidance to “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.” The Court parsed the CDA and found that Congress never used the words “sum certain,” evidencing that Congress did not intend the requirement to be jurisdictional. This is important because jurisdictional requirements can be raised at any time—even years after the claim was filed and a full hearing on the merits was held—and result in dismissal of the case. The Court explained that the “sum certain” is “nonetheless a mandatory rule that claimants must follow.”
The Government first raised the jurisdictional issue at the Armed Services Board of Contract Appeals by filing a motion to dismiss after more than six years of litigation, including a hearing and efforts to negotiate and then engage in Alternative Dispute Resolution—a fact that appeared to trouble the Federal Circuit. In the post-hearing motion to dismiss, the Government argued for the first time that the claim had two distinct delay claims, each with their own sets of operative facts that did not state their own sum certain, thus divesting the Board of jurisdiction. Although the contractor initially provided a total sum certain for its underlying delay claims, several of the claims had been previously dismissed or resolved on summary judgment before the Board hearing. The Board agreed with the Government and dismissed the contractor’s entire claim on the basis that each category of delay claim relied upon its own set of operative facts and, therefore, required a separate sum certain. After dismissal, the contractor was left with little recourse (except to appeal) because the six-year statute of limitations period had likely run.
On appeal, the Federal Circuit raised sua sponte whether the requirement for a sum certain in the Federal Acquisition Regulation (FAR) is jurisdictional under recent Supreme Court precedent—finding that its absence from the CDA’s language meant the requirement was not jurisdictional. The Court also noted that the CDA’s requirement to “certify” a contractor claim seeking more than $100,000 is not tied to the “sum certain” requirement because the CDA’s certification language “merely ensures that the contractor submits an accurate, good-faith monetary request to the Government.”
Although the “sum certain” requirement is no longer jurisdictional, it remains “a matter for the Board to explore on the merits.” For this reason, contractors should continue to invest in thorough and thoughtful claims assessments to mitigate against potential challenges later in litigation. But, consistent with other arguments that go to the merits of a claim, the Government may forfeit by delay, or elect to waive, any argument that a claim lacks a sufficient sum certain. This ruling is consistent with the CDA’s purpose of fair and efficient dispute resolution.
For further information, please contact:
Stephen J. McBrady, Partner, Crowell & Moring
smcbrady@crowell.com
