A4 Construction Company, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of - )

)

A4 Construction Company, Inc. ) ASBCA Nos. 63252, 63456, 63626

)

Under Contract No. W9128F-19-C-0016 )

APPEARANCE FOR THE APPELLANT: Denver C. Snuffer, Jr., Esq.

Nelson, Snuffer Dalhe & Poulsen PC

Sandy, UT

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

Jacob W. Harberg, Esq.

Thomas J. Tracy, Esq.

Engineer Trial Attorneys

U.S. Army Engineer District, Omaha

OPINION BY ADMINISTRATIVE JUDGE TAYLOR

ON THE GOVERNMENT’S MOTION TO DISMISS

The United States Army Corps of Engineers (USACE or the government)

moves to dismiss ASBCA No. 63456 for failure to state a claim alleging

A4 Construction Company, Inc. (A4 or appellant) failed to submit a sum certain

amount for its claim. 1 In the alternative, the government moves to strike paragraphs

8(A), 8(H) and 8(M) from appellant’s complaint for failing to provide a sum certain

amount for those separate and distinct claims (gov’t mot. at 18). We partially grant the

government’s motion and strike complaint paragraphs 8(A), 8(H) and 8(M) for failure

to state a claim since those separate and distinct claims are based upon materially

different, unrelated operative facts, for which A4 did not state a separate sum certain.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

Contract Award and Termination

1. On April 19, 2019, USACE awarded Contract No. W9128F-19-C-0016

(the contract) to A4 for the design and construction of a special operations

mountaineering facility at Fort Carson, Colorado (R4, tab 4). The contract

1

USACE does not seek to dismiss ASBCA Nos. 63252 or 63626. ASBCA No. 63252

is A4’s appeal of the termination for default while ASBCA No. 63626 involves

an A4 equitable adjustment claim on a different related contract.

incorporated by reference the FAR disputes clause which defined a “claim” 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 52.233-1, DISPUTES

(MAY 2014) (R4, tab 4 at 38). 2

2. USACE terminated the contract for default on January 14, 2022, due to

appellant’s alleged failure to complete the project by its modified contract completion

date (R4, tab 3). Appellant appealed the contract termination to the Board. The Board

docketed that appeal as ASBCA No. 63252.

A4’s Certified Claim and Complaint

3. On June 22, 2022, appellant submitted an equitable adjustment claim on the

contract to the USACE contracting officer (the claim) (R4, tab 56 at 757-66). The

claim included numerous exhibits (id. at 767-1168). The claim contained several

requests for money and delay arising from different events as described below (id.

at 757-66).

COVID Related Price Increases and Material Delays

4. Throughout its claim and complaint, A4 requests increased price and time

adjustments and increased subcontractor prices resulting from COVID-19 related

impacts (id. at 757-59, 760-61, 763; compl. ¶¶ 8(A), 8(C), 8(D), 8(E), 8(F), 8(J)).

A4’s claim first asserts a general claim for price and time adjustments resulting from

the COVID impacts (R4, tab 56 at 757-58). In its complaint, A4 states, “[A]mong

other things, the project was delayed and impacted by: COVID-19-related impacts for

which insufficient time was permitted, in violation of the OMB instructions” (compl.

¶ 8(A)). Neither the claim nor complaint, however, specify the monetary impact or

number of delay days A4 attributes to these general COVID impacts.

5. The claim then discusses several specific subcontractor COVID related

impacts. A4’s claim first requests an additional payment of $39,820 due to COVID

price increases its subcontractor Arapahoe Fire Protection allegedly incurred over its

bid price for fire protection equipment (id. at 760; compl. ¶ 8(C)). A4 included this

payment request as a line item in its itemized claim certification (R4, tab 56 at 766).

6. A4 next requests an additional payment of $67,796.88 due to its

subcontractor’s, Foster Electronic Corporation’s (Foster’s), allegedly increased costs

over its bid price for the procurement and installation of an electronic security system

and $504,771 for Foster’s allegedly increased costs for the procurement and

2

The government’s Rule 4 file is Bates numbered with a six-digit number proceeded

by “R.4 USACE.” Here, we delete the prefix and the leading zeroes.

2

installation of audio-visual equipment (id. at 761; compl. ¶¶ 8(D), 8(E)). A4 asserts

Foster incurred these increased costs due to the government’s delay in issuing Options

0006 and 0007 and the resulting COVID price increases (R4, tab 56 at 761).

7. USACE notified A4 by letter dated March 4, 2020, of its intent to exercise

the options in CLINs 0004, 0006 and 0007 and requested A4 hold its proposal pricing

through March 31, 2021 (id. at 1071). A4 agreed to hold its proposal pricing (id.).

USACE exercised these options by bilateral Contract Mod No. P00002 on March 30,

2021 (R4, tab 58 at 2531-33). In both its claim and complaint, A4 alleges it was

unable to get its subcontractors to perform the option CLINs 0006 and 0007 work

at the proposed prices due to the intervening COVID disruptions (R4, tab 56 at 761;

compl. ¶ 8(F)). 3 A4 included line items for “Option 0006” and “Option 0007” in its

itemized claim certification (R4, tab 56 at 766).

8. Finally, A4 contends COVID caused delays in getting roofing materials

before an unexpected snowstorm (id. at 763; compl. ¶ 8(J)). In its claim, A4 alleges

the snowstorm caused abnormally muddy grounds resulting in 14-days of delay (R4,

tab 56 at 763). It is unclear whether A4 included these 14 days in its 377 days of delay

line item in its itemized claim certification (id. at 766).

RME Subcontract “Extra Work” and Differing Site Conditions

9. A4’s claim next alleges the government required its subcontractor “RME” to

perform “extra work” under the contract between July 2020 and December 2020 (id.

at 759-60). A4 does not spell out the acronym RME but it appears to be a reference to

RME Ltd., LLC which was doing business as Rocky Mountain Excavating and Elite

Surface Infrastructure (id. at 913, 1047). The claim’s referenced supporting exhibits

show A4 approved certain change orders for various supplies and services (id. at 776-94).

In her final decision, the contracting officer determined A4’s change orders totaled

$332,721 with the exclusion of one change order that indicated the price was to “be

determined” (R4, tab 58 at 1175).

10. A4’s claim further indicates it consolidated the RME “extra work” claim

from three prior requests for equitable adjustments (REAs) (R4, tab 56 at 759). First,

on December 9, 2020, A4 submitted an REA for “Unforeseen Earthwork & Import”,

“Soil Stabilization requirements” and “Additional Days with General Conditions” (id.

at 796-98). This REA appears to be a claim for a differing site condition that required

stabilizing “soft soils” at the site (id.). The REA requested compensation in the

amount of $348,344 including “22 additional days with general conditions for the

3

A4 indicated its subcontractors on Option 0004 agreed to hold their proposed prices

(R4, tab 56 at 761).

3

extra time required to complete this work” (id. at 798). By letter dated April 28, 2021,

the USACE contracting officer denied the REA (id. at 1010-12).

11. On December 17, 2020, A4 submitted a second “extra work” REA for “the

unforeseen additional drilled pier footages, concrete, spoils haul-off and additional days

with general conditions” (id. at 836-41). This REA appears to involve a differing site

condition claim regarding the required drilled pier footage depths (id.). The REA

requested compensation in the amount of $142,980 including “6 additional days with

general conditions for the extra time required to complete this work” (id.) On January 7,

2021, the USACE contracting officer denied this REA (id. at 1003-04).

12. On January 22, 2021, A4 submitted a revised REA in response to the

contracting officer’s January 7, 2021, denial of its December 17, 2020, REA (id.

at 930-31). The revised REA adjusted the claimed amount to $136,831 and included

“3 additional days (in lieu of 6 additional days) with general conditions for the extra

time required to complete the work” (id.). On April 13, 2021, the USACE contracting

officer denied the revised REA claim (R4, tab 27 at 357-59).

13. Apparently, A4 refused to pay RME for its extra costs following the

contracting officer’s denial of its REAs (R4, tab 56 at 760). A4 and RME entered

arbitration over the disputed amount (id.). The arbitrator awarded RME $534,181.10

including $61,036.50 in attorney fees (id. at 1047-51). It is unclear whether A4

included the arbitration award in its claim.

14. In addition to the RME “extra work” discussion, A4’s June 22, 2022, claim

includes sections entitled “Depth of Piers” and “Differing Site Conditions” (id. at 762-63).

A4’s “Depth of Piers” claim appears to be the same as its December 17, 2020 “extra

work” REA (compare id. at 762-63, with id. at 836-41). Similarly, A4’s “Differing Site

Conditions” claim appears to be the same as its December 9, 2020, “extra work” REA

(compare id. at 759-60, with id. at 763).

15. A4’s itemized claim certification does not list a separate sum certain

amount for either its RME “extra work”, pier depth or differing soil condition claims

(id. at 766). The claim certification, however, includes a line item for “Subcontractor

amounts earned but unpaid at the time of termination” in the amount of $2,859,828.64

but does not break out those costs to its different claims (id.).

16. A4’s itemized claim certification also includes separate line items for

“North American Testing” in the amount of $11,365 and “Schmidt” in the amount of

$30,354.91 (id.). These two subcontractor claims appear to be part of A4’s differing

site condition claim but were not included in either its “extra work” claim or its

December 9, 2020, REA (compare id. at 763, with 759-60, 796-98).

4

17. A4 included claims for the extra work resulting from alleged constructive

changes and differing site conditions in its complaint but did not include a monetary

amount associated with these claims (compl. ¶¶ 8(B), 8(I), 8(K)).

Jobsite Flooding

18. A4’s June 22, 2022, claim also asserts a “hundred-year” storm at Fort

Carson resulted in water from areas under USACE’s control to flood the jobsite (R4,

tab 56 at 761-62). A4 claims this flood washed away previously prepared ground

preparation and installed forms requiring additional work to fix the resulting damage

(id. at 762). A4 claims its total cost resulting from this flooding was $193,121.63 (id.).

This amount appears to include $19,662 for its subcontractor BZ Phase, $18,193.75 for

its subcontractor Voidform Water Damage and 77 delay days at $2,016.44 per day

($155,265.88) (id.).

19. A4’s itemized claim certification, however, does not specifically identify

any costs resulting from the flooding except for a single line item identified as

“Flooding Void Form: $18,193.75” (id. at 766). Similarly, A4 included its jobsite

flooding claim in its complaint but failed to include a monetary amount associated

with the claim (compl. ¶ 8(G)).

Earthquake

20. A4’s June 22, 2022, claim includes a delay claim associated with an

earthquake in Utah that damaged the main office of the architectural firm working on

the design of the mountaineering facility resulting in the architect being out of

communication for two days (R4, tab 56 at 762). A4 claims the earthquake caused a

two-delay on the project (id.). In her final decision, the contracting officer indicated

the government extended the contract by two calendar days due to the earthquake

impacts (R4, tab 58 at 1179). A4’s itemized claim certification does not specifically

identify any costs or damages resulting from the earthquake (R4, tab 56 at 766).

21. In its complaint, A4 claims USACE failed to allow a monetary adjustment

on the contract due to the earthquake (compl. ¶ 8(H)). A4, however, does not specify

the monetary adjustment amount (id.).

Gas Piping Change

22. A4’s June 22, 2022, claim next asserts a claim for a gas piping change (R4,

tab 56 at 764). A4 claims this change resulted in $8,176 in increased costs and

5

three delay days but alleges USACE reimbursed it only $1,612 (id.). 4 In its claim

certification, A4 specifically identifies a claim for “Gas Piping” in the amount of

$6,980 (id. at 766). In its complaint, A4 indicates USACE approved a change order

for the gas piping but failed to award any extra delay days (compl. ¶ 8(L)).

BZ Phase Concrete Subcontractor

23. A4 also claims it incurred substantial increased costs and incurred a delay

in finding a replacement concrete subcontractor for BZ Phase who, apparently,

abandoned the job (R4, tab 56 at 764). A4 indicates the government’s allowance of

64-days for this delay was unacceptable but does not quantify either its increased costs

or the number of delay days associated with the concrete subcontractor issue (id.).

24. Similarly, A4’s complaint indicates the government refused to award an

equitable adjustment in time and money for the BZ Phase subcontractor work impacts

but does not identify a monetary amount or the number of delay days A4 seeks

resulting from this impact (compl. ¶ 8(M)). The complaint states, “[I]mpacts to the

work performed by the subcontractor BZ Phase, for which an equitable adjustment in

time and money was refused” (id.).

Delays

25. Finally, A4’s June 22, 2022, claim asserts the contract changes, differing

site conditions and COVID impacts resulted in 377 compensable days of delay at a

daily rate of $2,016.44 resulting in a claimed adjustment to its G&A costs of

$760,197.88 (R4, tab 56 at 764). 5 A4 does not, however, separately identify the

number of delay days associated with each of these events (id.).

26. A4 included an REA certification with its claim requesting a payment in

the amount of $5,557,937.74 (id. at 766). The certification broke down the requested

sub amounts as follows:

Fire Protection extra: $ 39,820.00

Option 006: $ 67,796.88

Option 007: $ 504,771.00

Flooding Void Form: $ 18,193.75

North American Testing: $ 11,365.00

Schmidt $ 30,354.91

4

A4 also confusingly indicates USACE paid the difference in Amendment 7 but still

includes the $6,980 difference in its claim (R4, tab 56 at 764).

5

In its itemized claim certification, A4 mistakenly lists this calculation as $748,099.24

rather than the correct calculated amount of $760,197.88 (R4, tab 56 at 766).

6

Gas Piping $ 6,980.00

Costs of Labor to A4 $ 325,933.34

Costs of Materials to A4 $ 181,798.42

Days of delay

(377 days at a daily rate of $2,016.44) $ 748,099.24 6

Overhead at 8% $ 382,780.89

Profit at 7.65% $ 395,316.97

Bond at 0.75% $ 41,721.44

Subcontractor amounts earned but

Unpaid at the time of termination $2,859,828.64

TOTAL of the foregoing: $5,557,937.74 7

(Id.) A4 did not break out its own labor or material costs or the “Subcontractor

amounts earned but unpaid at the time of termination” among its separate subclaims.

27. A4 included a footnote to the claimed unpaid subcontractor amounts that

stated:

Some (perhaps all) of the amounts earned before

termination and owing to subcontractors may be paid by

the Corps to the Bonding Company and eventually paid to

subcontractors, which will need to be clarified through a

final accounting on the job. At present A4 does not

possess the accounting information to allow them to make

an appropriate adjustment. None of the amounts owing to

subcontractors should be paid twice, but everything ought

to be paid in full by the Corps once.

(Id.) A4 indicated its certified claim total amount should be adjusted, as needed, based

upon this footnote (id.).

Contracting Officer’s Final Decision and Appeal

28. On October 28, 2022, the USACE contracting officer issued a contracting

officer’s final decision (COFD) providing a detailed explanation as to why she denied

each claim (R4, tab 58).

6

The Board notes 377 x $2,016.44 = $760,197.88 and not $748,099.24.

7

The Board notes appellant’s actual claim itemization totals to $5,614,760.48 and not

$5,557,937.74. The inclusion of the correct “Days of delay” calculation results

in a total claim amount of $5,626,859.12.

7

29. On November 7, 2022, A4 appealed the COFD to the Board. In its appeal

notice, A4 indicated the amount in dispute is $5,557,937.74. A4 also included a

Contract Disputes Act (CDA) certification with its appeal notice requesting an

entitlement to an equitable adjustment “in an amount not less than $5,557,937.74.”

The Board assigned the appeal ASBCA No. 63456 and consolidated it with ASBCA

No. 63252.

30. Appellant filed its complaint under ASBCA No. 63456 on December 14,

2022. On October 11, 2023, the government filed a motion to dismiss the appeal for

failure to state a claim or, in the alternative, to strike paragraphs 8(A), 8(H) and (8)(M)

from appellant’s complaint since they are subclaims that failed to state a sum certain

(gov’t mot. at 18).

DECISION

I. Parties’ Contentions

In its motion to dismiss, the government first asserts the Board should dismiss

appellant’s appeal since A4’s overall claim fails to meet the FAR sum certain

requirement (id. at 1). The government alleges the sum certain amount A4 included in

its claim is an “approximation” and “fails to add up” (id. at 9-12.). In the alternative,

the government contends the Board should strike A4’s earthquake, BZ Phase

subcontractor and general COVID-19 claims since they are stand-alone “sub-claims”

for which appellant failed to provide separate sum certain amounts (id. at 12-17).

Appellant responds that its claim met the sum certain requirement (app. opp’n

at 2). Appellant contends its claim “clearly informed the contracting officer of the

nature and the amount of the relief sought by A4” (id. at 3). Appellant further asserts

the government “could determine the amount with a simple mathematical calculation”

(id.). Appellant also contends “[a]ll of the purported ‘sub-claims’ arise from the same

material facts, present the same legal theories and seek the same remedies” (id. at 7).

If the Board determines the claims lack a sum certain amount, appellant asserts the

Board should allow A4 to amend its claim rather than dismiss (id. at 5). Finally,

appellant contends the government forfeited its right to challenge the sum certain

sufficiency (id. at 5-6).

In its reply to appellant’s response, the government reiterates appellant’s claim

did not state a sum certain and A4 did not provide sum certain amounts for its various

distinct sub-claims that arose from different operative facts (gov’t reply at 3-5). 8

8

The government’s reply suggests appellant failed to include a sum certain for any of

its distinct claims (gov’t reply at 4). The government’s motion, however,

moves to strike only paragraphs 8(A), 8(H) and 8(M) from appellant’s

8

Finally, the government asserts it has not forfeited its challenge to the sufficiency of

appellant’s claim since it filed this motion seven months before the close of written

discovery (id. at 5-6).

II. Standard of Review for Motions to Dismiss for Failure to State a Claim

The Federal Circuit has held the requirement for a party to state a sum certain

for the specific amount sought for each distinct claim when submitting a claim under

the CDA, 41 U.S.C. §§7101-7109, is mandatory but not jurisdictional. ECC Int'l

Constructors (ECCI), LLC v. Sec'y of Army, 79 F.4th 1364, 1380 (Fed. Cir. 2023).

The court further noted the sum certain requirement is an element of a claim that a

claimant must satisfy to recover on its claim (id. at 1376). The court stated, “[A] claim

that does not state a sum certain has not sufficiently pleaded the elements of a claim

under the CDA and may be denied by the contracting officer and dismissed on appeal

to the boards or Court of Federal Claims for failure to state a claim” (id. at 1380).

Here, the government moves to dismiss the appeal due to appellant’s alleged failure to

state a sum certain – a required element of its claim.

“Dismissal for failure to state a claim upon which relief can be granted is

appropriate where the facts asserted in the complaint do not entitle the claimant to a

legal remedy.” Parsons Government Services, Inc., ASBCA No. 60663, 17-1 BCA

¶ 36,743 at 179,100 (citing Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.

2002). In deciding a motion to dismiss for failure to state a claim, “the court must

accept well-pleaded factual allegations as true and must draw all reasonable inferences

in favor of the claimant.” Kellogg Brown & Root Services, Inc. v. United States,

728 F.3d 1348, 1365 (Fed. Cir. 2013). “For purposes of assessing whether an appeal

before us states a claim upon which relief can be granted, the primary document

setting forth the claim is not the complaint, per se, but the contractor’s claim submitted

to the contracting officer.” Parsons Government Services, Inc., 17-1 BCA at 179101

citing Lockheed Martin Integrated Systems, Inc., ASBCA Nos. 59508, 59509,

17-1 BCA ¶ 36,597 at 178,281. Accordingly, we look to both A4’s complaint and its

certified claim in analyzing whether they state a claim upon which relief can be

granted. Halbert Construction Company, Inc., ASBCA Nos. 62250, 62251, 21-1 BCA

¶ 37,863 at 183,858.

III. Appellant’s Overall Claim States a Sum Certain

The FAR disputes clause defines a claim, in 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.” See FAR 52.233-1(c), DISPUTES (MAY 2014).

complaint (gov’t mot. at 18). As such, we do not render an opinion on whether

appellant’s other claims contain sum certain amounts.

9

While a CDA claim need not be submitted in any particular form or use any particular

wording, it must contain “a clear and unequivocal statement that gives the contracting

officer adequate notice of the basis and amount of the claim.” Contract Cleaning

Maint., Inc., v. United States, 811 F.2d 586, 592 (Fed. Cir. 1997).

The government first contends appellant’s claim does not contain an overall

sum certain because it is an “approximation” and “fails to add up” (gov’t mot. at 9-12).

A4’s claim asserts a total amount of $5,557,937.74 (SOF ¶ 26). The claim, however,

includes a footnote whereby A4 indicates the claimed amount should be adjusted as

needed to avoid a double payment if USACE pays some of the claimed subcontractor

costs to the bonding company that, subsequently, directly pays the subcontractors

(SOF ¶ 27). The footnote further states A4 does not have the necessary accounting

information to make the appropriate adjustment in the claim (id.). The government

contends that footnote undermines the sum certain requirement (gov’t mot. at 10-11).

The government asserts the footnote’s qualifying language is “indistinguishable”

from other language the Board has previously determined does not meet the CDA sum

certain requirement (id. at 11). The Board has held a claim’s qualifications to a

numerical amount may prevent it from being a sum certain. See, e.g., Odyssey

International, Inc., ASBCA No. 62062, 20-1 BCA ¶ 37,510 at 182,212 (“at least”);

Elham Ahmadi Construction Co., ASBCA No. 61031, 17-1 BCA ¶ 36,861 at 179,604

(“about”); Strobe Data, Inc., ASBCA No. 60123, 16-1 BCA ¶ 36,124 at 176,695 (“a

minimum of”); J.P. Donovan Construction, Inc., ASBCA No. 55335, 10-2 BCA

¶ 34,509 at 170,171 aff’d J.P. Donovan Const. v. Mabus, 469 F.App’x 903, 908 (Fed.

Cir. 2012) (“approximately”); Sandoval Plumbing Repair, Inc., ASBCA No. 54640,

05-2 BCA ¶ 33,072 at 163,933 (“no less than”); Eaton Contract Services, Inc., ASBCA

No. 52888 et al., 02-2 BCA ¶ 32,023 at 158,267) (“in excess of”); and id. at 158,269

(“well over”).

On the other hand, the Board has held an indication that a claim may need

adjusting in the future does not invalidate the sum certain requirement. M.J. Hughes

Construction, Inc., ASBCA No. 61782, 19-1 BCA ¶ 37,235 at 181,235; Ball

Aerospace & Technologies Corp., ASBCA No. 57558, 11-2 BCA ¶ 34,804 at 171,276;

Computer Sciences Corp., ASBCA No. 27275, 83-1 BCA ¶ 16,452 at 81,843. In the

M.J. Hughes Construction appeal, M.J. Hughes Construction, Inc. provided a specific

dollar amount but noted two parts of its claim may overlap requiring possible

recalculation of the damages to prevent double recovery. The government moved to

dismiss the appeal for failing to state a sum certain. The Board found the claim stated

a specific dollar amount even though it indicated that amount “may need to be adjusted

based on the CO’s entitlement decision so as to avoid double recovery.” M.J. Hughes

19-1 BCA at 181,235. This case is similar.

10

A4 submitted a claim for a specific dollar amount. The claim included a

footnote notifying the contracting officer the amount may need a future adjustment to

avoid a double payment if USACE pays some of the claimed subcontractor costs to the

bonding company and subsequently, the bonding company directly pays the

subcontractors. The footnote does not undermine the claim’s specific dollar amount.

Rather, the footnote merely informs the contracting officer of a potential future

necessary adjustment to prevent a possible overpayment. It is well established that a

contractor may amend its claim by increasing or decreasing the amount on appeal to

the Board. See Tecom, Inc. v. United States, 732 F.2d 935, 937 (Fed. Cir. 1984);

Constellation NewEnergy, Inc., ASBCA No. 62518, 21-1 BCA ¶ 37,758 at 183,285

(“The sum certain in a claim is not set in stone”). A4’s notification to the contracting

officer of a possible future adjustment to prevent a potential double recovery does not

defeat the sum certain requirement.

The government also asserts appellant’s claim fails to state a sum certain due to

the mathematical inaccuracies in the calculations (gov’t mot. at 11-12). The

government points out appellant’s certified claim states it is for 377 delay days

at $2,016.44 per day for a total of $748,099.24 (SOF ¶ 26). The government correctly

notes this calculation should be $760,197.88 (gov’t mot. at 12). The government

contends the inaccurate delay calculation results in the contracting officer having to

“guess at the actual total cost of delay” (id.).

Furthermore, the government notes appellant’s claimed “TOTAL” is inaccurate

(id.). Appellant’s claim indicates its itemized claims total $5,557,937.74 (SOF ¶ 26).

The correct total for the itemization should be $5,614,760.48. The government

contends, “[A] facially inaccurate calculation by definition cannot be ‘certain’” (gov’t

mot. at 11). The government argues the total miscalculation is “nothing more than an

approximation” (id.).

The Board has long held a claim that is readily calculable by simple arithmetic

meets the sum certain requirement. PHI Applied Physical Sciences, Inc., ASBCA

Nos. 56581, 58038, 13-1 BCA ¶ 35,308 at 173,337 (“Although the amount sought was

not expressly totaled by appellant, a sum certain total is readily calculable by simple

arithmetic”); Northrop Grumman Systems, Corp., Space Systems Div., ASBCA

No. 54774, 10-2 BCA ¶ 34,517 at 170,233 (A monetary remedy is stated in a “sum

certain” when the amount sought is identifiable as a “determinable amount”);

Mohammad Darwish Ghabban Est., ASBCA No. 51994, 00-2 BCA ¶ 31,114

at 153,671 (“Where the amount demanded can be determined by simple mathematical

calculation, a contractor’s submission constitutes a valid claim over which the Board

has jurisdiction”).

In its motion, the government itself correctly calculates the claim amount (gov’t

mot. at 3). Appellant’s claim clearly gave the government notice of the amount of its

11

total claim. Creative Mgmt. Servs., LLC v. United States, 989 F.3d 955, 962 (Fed. Cir.

2021) (“The requirement that a claim demand a ‘sum certain’ serves to provide the

parties with notice of the amount of the claim”). As such, appellant’s mathematical

miscalculations do not defeat the sum certain requirement.

IV. Appellant Fails to State a Sum Certain for Complaint Paragraphs 8(A),

8(H), and 8(M)

In the alternative to dismissing appellant’s entire claim for failing to meet the

FAR sum certain requirement, the government moves to strike paragraphs 8(A), 8(H)

and 8(M) from appellant’s complaint (gov’t mot. at 18). The government contends

appellant’s claims for the earthquake, the BZ Phase concrete subcontractor and the

general COVID-19 impacts should be dismissed for failing to state a sum certain for

each of those separate and distinct claims (id. at 13-17). Appellant responds that all its

“purported ‘sub-claims’ arise from the same material facts, present the same legal

theories and seek the same remedies” (app. opp’n at 7).

One contract may give rise to numerous claims. Placeway Constr. Corp. v.

United States, 920 F.2d 903, 907 (Fed. Cir. 1990). The Federal Circuit has held that

requests are “separate claims if they either request different remedies (whether

monetary or non-monetary) or assert grounds that are materially different from each

other factually or legally.” K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000,

1005 (Fed. Cir. 2015) (emphasis in original) (citing Contract Cleaning, 811 F.2d

at 592). Likewise, in Lee's Ford Dock, Inc., the Federal Circuit observed that

“[m]aterially different claims ‘will necessitate a focus on a different or unrelated set of

operative facts.’” Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361,

1369 (Fed. Cir. 2017) (quoting Placeway Constr. Corp., 920 F.2d at 907) (to

determine whether an issue constitutes a new or separate claim “the court must assess

whether or not the claims are based on a common or related set of operative facts”).

Consequently, a contractor’s monetary claim must state a bottom-line sum certain for

each distinct claim component and not just the entire case. K-Con Bldg. Sys., Inc.,

778 F.3d at 1005, citing Joseph Morton Co. v. United States, 757 F.2d 1273, 1281

(Fed. Cir. 1985) (“Congress did not intend the word ‘claim’ to mean the whole case

between the contractor and the Government; but, rather, that ‘claim’ mean each claim

under the CDA for money that is one part of a divisible case”).

In this case, A4’s June 22, 2022, claim describes numerous separate and distinct

subclaims that arise from materially different and unrelated operative facts (SOF ¶¶ 4-25).

The claim includes COVID impacts, differing site condition claims due to soil conditions

and pier depths, equitable adjustment claims for damages resulting from a flood and an

earthquake, and delay claims due to variations in the existing gas piping conditions and

the loss of a concrete subcontractor. The government has moved to strike the earthquake,

the BZ Phase concrete subcontractor and the general COVID-19 impact claims for failing

12

to state a sum certain (gov’t mot. at 18). The government correctly notes A4 failed to

include a separate sum certain amount for those separate and distinct claims.

A. Earthquake Impact

A4’s claim asserts a delay claim resulting from an earthquake in Utah (SOF ¶ 20).

Appellant’s complaint further indicates the earthquake impact entitled A4 to an

adjustment in time and money (SOF ¶ 21). The government moves to strike A4’s

complaint paragraph 8(H) that contains this claim since it is a separate and distinct claim

for which A4 failed to state a sum certain amount (gov’t mot. at 13-15).

Appellant’s earthquake claim indicates the architect working on the design of

the mountaineering facility was out of communication for 2 days due to the earthquake

(SOF ¶ 20). Appellant’s claim does not, however, indicate the total number of days of

delay or the monetary amount it believes it is entitled to resulting from the earthquake.

Moreover, appellant’s complaint indicates USACE failed to allow an unspecified

monetary adjustment on the contract due to the earthquake (SOF ¶ 21). As such, we

are unable to determine the sum certain amount A4 claims for the alleged earthquake

impact and must dismiss that claim and strike complaint paragraph 8(H).

B. BZ Phase Concrete Subcontractor Claim

The government next moves to strike A4’s complaint paragraph 8(M) that

contains A4’s claim for an equitable adjustment due to the loss of a concrete

subcontractor, BZ Phase (gov’t mot. at 15-16). A4’s claim indicates the government’s

allowance of 64-days for the delay resulting from the loss of this subcontractor was

“unacceptable” (SOF ¶ 23). A4’s claim, however, does not indicate the number of

delay days or the amount of increased costs it claims it is entitled to resulting from the

loss of this subcontractor (id.). Appellant’s complaint provides little additional

information (SOF ¶ 24). A4’s delay claim and request for increased costs due to the

loss of its concrete subcontractor must be dismissed for failing to state a sum certain.

We strike paragraph 8(M) from the complaint.

C. COVID Impact Claim

Finally, the government moves to strike appellant’s complaint paragraph 8(A) in

which A4 claims COVID-19 related time impacts (gov’t mot. at 16-17). Appellant’s

complaint paragraph 8(A) states, “[A]mong other things, the project was delayed and

impacted by: COVID-19-related impacts for which insufficient time was permitted, in

violation of the OMB instructions” (SOF ¶ 4).

13

A4’s claim asserts numerous COVID related impacts (SOF ¶¶ 4-8). 9 These

impacts include a general claim for COVID related price and time adjustments (SOF

¶ 4) and alleged increased subcontractor costs including fire protection (SOF ¶ 5),

electronic security systems (SOF ¶ 6), audio visual equipment (id.), and delays in

obtaining roofing materials (SOF ¶ 8). While the claim included sum certain amounts

for each of the increased subcontractor costs, it did not identify an amount for its own

alleged increased COVID impact labor and material costs or indicate the alleged

number of delay days A4 attributed to COVID (SOF ¶ 4). As such, it is impossible to

determine the sum certain amount A4 seeks for its COVID impact claim. Since A4’s

claim for its COVID impacts clearly arose from grounds materially different from its

other claims and involve different operative facts, we must dismiss this claim for

failing to state a sum certain. The government’s motion to strike complaint paragraph

8(A) is granted.

Because each claim must first be presented to a contracting officer with a sum

certain to give them adequate notice of the claim amount and the opportunity to

consider the claim, we strike complaint paragraphs 8(A), 8(H) and 8(M) and dismiss

the claims presented therein to allow A4 to properly present the claims to the

contracting officer for a decision. See Creative Mgmt. Servs., 989 F.3d at 962;

M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010)

(“The purpose of this requirement is to encourage the resolution of disagreements

at the contracting officer level thereby saving both parties the expense of litigation.”)

V. Government’s Motion to Dismiss is Timely

Appellant also asserts the government forfeited its right to challenge the claim’s

sufficiency since it waited too long to file a motion to dismiss (app. opp’n at 5-6).

Appellant suggests the government forfeited its right to challenge the sum certain

requirement since the contracting officer issued a final decision on the claim without

questioning whether the claim contained a sum certain amount (id. at 6). In addition,

appellant asserts it has been prejudiced by the government’s delay in raising this issue

since written discovery has occurred and the parties are now scheduling and taking

depositions (id. at 5).

Appellant correctly notes that the government can forfeit its right to require a

contractor to comply with the sum certain mandatory claims-processing rule if it waits

too long to invoke the rule. ECCI, 79 F.4th at 1379. The Board has found that the

government forfeits its right to challenge a contractor’s satisfaction of the sum-certain

requirement when it waits until after a hearing on the merits to request the dismissal.

ECC International Constructors, LLC, ASBCA No. 59643, 24-1 BCA ¶ 38,490

9

The government does not move to strike A4’s COVID-19 related subcontractor

claims included in its complaint at ¶¶ 8(C), (D), (E), (F) and (J).

14

at 187,085; see also JE Dunn Construction Company, ASBCA No. 63183, 24-1 BCA

¶ 38,478 at 187,025 (government forfeited its right to challenge contractor’s

satisfaction of the sum-certain requirement by waiting until after the hearing on the

merits to request dismissal on sum-certain grounds).

In contrast, this appeal is still in the discovery phase. In its ECCI decision, the

Federal Circuit noted the Supreme Court has not articulated precisely how long is

“too long” for the government to raise a mandatory claims-processing rule as a defense

before that defense is forfeited. ECCI, 79 F.4th at 1379. The Federal Circuit further

noted, however, the Supreme Court has indicated a defense based upon a mandatory

claims-processing rule raised as a failure to state a claim upon which relief can be

granted, “could be raised, at the latest, ‘at the trial on the merits.’” Id. at 1380 (quoting

Kontrick v. Ryan, 540 U.S. 443, 459 (2004) (quoting Fed. R. Civ. P. 12(h)(2))). The

government correctly notes it raised the sum certain requirement seven months before

the close of written discovery and 18 months before the scheduled hearing (gov’t reply

at 6). Here, A4 also has a recourse for filing a new claim with a clear sum certain for

each distinct subclaim with the contracting officer. If the contracting officer denies

that claim, the parties will be able to conduct discovery on the new appeal. We

conclude the government has not forfeited its right to raise the sum certain requirement

in this appeal.

CONCLUSION

The government’s motion is granted in part. Complaint paragraphs 8(A), 8(H),

and 8(M) are stricken.

Dated: April 29, 2024

ARTHUR M. TAYLOR

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)

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I concur I concur

OWEN C. WILSON MICHAEL N. O’CONNELL

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals in ASBCA No. 63456, Appeal of A4

Construction Company, Inc., rendered in conformance with the Board’s Charter.

Dated: April 29, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals