Ding Dong, the Witch is Dead: Federal Circuit Rules that CDA "Sum Certain" Requirement is Not Jurisdictional
The Federal Circuit has ruled that the requirement to state a "sum certain" in a Contract Disputes Act (CDA) claim is not jurisdictional, dealing yet another significant blow to efforts in recent years to prevent boards of contract appeals or the Court of Federal Claims (COFC) from resolving CDA cases on the merits. The decision in ECC International Constructors, LLC v. Secretary of the Army, No. 21-2323 is of tremendous significance because it confirms unequivocally that the sum certain requirement is a "nonjurisdictional rule subject to forfeiture."
This ruling substantially reduces, if not eliminates, the risk that an appeal will be dismissed based on alleged failure to state a sum certain, unless the issue is raised at the outset of litigation. In addition, the Federal Circuit has signaled that it will almost certainly reach the same conclusion regarding any other requirements for a claim established by the Federal Acquisition Regulation (FAR), but which are not clearly stated in the CDA itself.
The ECCI Decision
In ECCI, the contractor had submitted a claim in 2014 seeking $13,519,913.91 for 329 days of alleged government delays, then filed an appeal at the Armed Services of Contract Appeals (ASBCA) when it did not receive a final decision from the contracting officer. Over the next several years, the parties litigated the case and otherwise tried to resolve it before holding a nine-day hearing in 2020. Three months after the hearing concluded, and after the CDA's statute of limitations had run on ECCI's claim, the government filed a motion to dismiss for lack of jurisdiction, raising for the first time the argument that ECCI's claim was improper because it had included a number of distinct claims but did not state a "sum certain" for each of those distinct claims. The ASBCA agreed with the government and dismissed ECCI's appeals for lack of jurisdiction.
On appeal, the Federal Circuit recognized that, in prior cases, it had identified the sum certain requirement as jurisdictional, based on the FAR's definition of a claim. However, the court noted that recent Supreme Court decisions "reflect that rules outside the statutory text are not jurisdictional" and that, for a procedural rule to be considered jurisdictional, the relevant statute must clearly state that it is. Given this, the Federal Circuit found that, since the requirement for a sum certain is established by the FAR and not the CDA itself, it cannot be considered jurisdictional. The court also rejected the government's argument that the CDA's mere use of the word "claim" was somehow sufficient to establish a jurisdictional requirement that a claim state a sum certain.
ECCI is a tremendous step forward for the CDA disputes process and continues the trend (discussed here) of the Federal Circuit rolling back jurisdictional hurdles in government contracts litigation. Going forward, there will be much less (if any) risk that a late-asserted, alleged procedural defect in a claim will be able to derail years' worth of time and effort spent litigating it. This benefits all involved in the process: the government, the contractor, and the tribunals.
If you have any questions about the ECCI decision, or government contracts litigation and claims generally, please contact one of the Miller & Chevalier attorneys listed below:
The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.
This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.