Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent

On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed, the government forfeited its right to challenge the contractor’s satisfaction of the FAR’s sum-certain requirement for Contract Disputes Act claims.

As we previously discussed, the decision of 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 or court to exercise jurisdiction over an appeal. The underlying appeal dated back to 2014, but the government chose to wait until 2020, after earlier negotiations and a nine-day merits hearing, to challenge the Board’s jurisdiction. Pointing to decades of caselaw, the ASBCA dismissed the contractor’s claim for lack of jurisdiction because the claim had multiple sub-claims and the contractor had not stated a separate sum certain for each sub-claim. On appeal, the Federal Circuit reversed the Board’s decision, holding consistent with recent Supreme Court precedent that the sum-certain requirement is not jurisdictional but, rather, is a claims processing rule that is subject to forfeiture or waiver. On remand, the Board evaluated whether the government forfeited the right to raise its sum-certain argument and held that waiting six years and until after the hearing resulted in forfeiture. Notably, the Board rejected the government’s argument that an exchange during the hearing regarding the sum-certain issue could prevent forfeiture.

This is the second decision out of the ASBCA (following JE Dunn) to apply the Federal Circuit’s ECCI holding. We will continue to monitor additional developments as the Board considers when, and under what circumstances, a party forfeits its right to allege that the other party failed to state a sum certain.