In September 2010, the U.S. Army Corps of Engineers awarded ECC International Constructors, LLC (ECCI) a contract to design and build a Special Operations Forces Joint Operations Center compound in Mazar-e-Sharif, Afghanistan. The contract was valued at more than $29 million. Shortly after beginning work, ECCI alleged that government actions and directives caused significant delays. On February 12, 2014, ECCI submitted a claim to the contracting officer seeking $13.5 million and a time extension of 329 days for government-caused delays. The claim broke down delays into categories including design review delays, additional work requirements, and security changes.
The contracting officer did not issue a decision, and ECCI treated the lack of response as a deemed denial under the Contract Disputes Act (CDA). In October 2014, ECCI appealed to the Armed Services Board of Contract Appeals (ASBCA).
Following years of settlement discussions, discovery, and mediation, the Board held a nine-day hearing in February and March 2020 on ECCI’s delay claim. Three months after the hearing, the government moved to dismiss for lack of jurisdiction, arguing that ECCI’s claim failed to state a “sum certain” for each distinct sub-claim, such as delays related to design submissions or additional work. On May 17, 2021, the Board dismissed the claim, ruling that although ECCI’s overall demand specified $13.5 million, it did not provide a separate sum certain for each sub-claim. A motion for reconsideration was also denied.
ECCI appealed the dismissal to the U.S. Court of Appeals for the Federal Circuit. The central issue was whether the CDA’s requirement that claims state a “sum certain” was jurisdictional, meaning that failure to comply deprived the Board of authority to hear the case. The Federal Circuit reviewed recent Supreme Court precedent clarifying the distinction between jurisdictional rules and mandatory claim-processing rules.
The court noted that the CDA itself does not contain a sum-certain requirement. Instead, the Federal Acquisition Regulation (FAR) defines a claim as a written demand for payment of money in a sum certain. The court determined that this regulatory requirement was mandatory but not jurisdictional. It explained that a failure to specify a sum certain for each sub-claim could result in dismissal for failure to state a claim but did not deprive the Board of jurisdiction. The government’s ability to raise the issue late in the process was therefore limited by principles of forfeiture.
The Federal Circuit reversed the Board’s dismissal and remanded the case. It held that the sum-certain requirement is a mandatory, nonjurisdictional rule. Because the government first raised its objection six years after the claim was filed and only after a full hearing on the merits, the Board was directed to consider whether the government forfeited its right to challenge the sufficiency of ECCI’s claim and, if so, to decide the case on its merits.
If you are involved in a disagreement over government or private contracts, Whitcomb, Selinsky PC assists with contract disputes. Contact us to learn how our team can support your case.