We previously wrote that when submitting a claim for over $100,000 submitted under the Contract Disputes Act, 41 U.S.C. § 601 et seq. (CDA), the individual executing a certification of the claim must sign the certification and cannot, for example, denote a signature by markings such as "//s//." See Put Your John Hancock On It! www.wileyrein.com/john_hancock. Another important reminder for contractors submitting CDA claims is to be sure that a monetary claim asserts a "sum certain."
Under the CDA, "[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision." Although the CDA does not define the term "claim," the FAR defines a "claim" in relevant part as "a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain . . . ." FAR § 2.101 (emphasis added). In United Constructors, LLC v. United States, No. 08-757C, slip op. (Mar. 27, 2009) (not for publication), Judge George W. Miller of the United States Court of Federal Claims (COFC) granted the Government's partial motion to dismiss United Constructors appeal because United Constructors' "claim" failed to state a "sum certain" for several categories of claimed cost increases.
The contract at issue was for the construction of a water system improvement project with the Forest Service. Upon the completion of performance, United Constructors executed a release acknowledging receipt of final payment and including five "reservations" for potential claims. United Constructors then submitted a claim to the contracting officer for two of the "reservations" and noted in a footnote that it had "at least one more claim to submit" for which it was awaiting cost information. Two of the remaining reserved items were not mentioned at all.
After the contracting officer failed to issue a decision within 60 days, United Constructors appealed the "deemed denial" to the COFC and included all of its reserved claims in its complaint. In granting the Government's motion to dismiss, the court held that "[g]eneral statements reserving the right to file a claim in the future fail to satisfy the 'sum certain' requirement" in the FAR. Moreover, although the FAR permits the contractor to submit a claim either for a "sum certain" or for "other relief," that alternative does not relieve the contractor seeking increased compensation from asserting a "sum certain" in its claim because "the 'other relief' provision is directed to non-monetary remedies . . . ." Where a contractor "attempts to recover the 'payment of money,' a CDA claim must contain a request for that money in a 'sum certain.'"
The Boards of Contracts Appeals similarly require that a claim for payment of money demand a "sum certain." Claims that qualify the amount sought with terms like "at a minimum," "no less than," "not less than" and "in excess of" have been found to disqualify a stated amount as a sum certain. See Rex Systems, Inc., ASBCA No. 54436, 07-2 BCA ¶ 33718; Sandoval Plumbing Repair, Inc., ASBCA No. 54640, 05-2 BCA ¶ 33,072 (2005).
So, in addition to ensuring that the certification of qualifying claims is signed, contractors seeking monetary compensation under the CDA should be sure that their claims assert an unqualified, and easily identifiable, "sum certain."