Contractors with claims against their government customers sometimes feel stymied by the requirement in the Contract Disputes Act (CDA) that a claim state a “sum certain.” A contractor may know that it has a valid claim but may be unable to state the precise amount of that claim because the work is not yet done or insufficient data is available.
A recent decision of the Armed Services Board of Contract Appeals provides hope for those contractors. In that case, the government argued that the contractor’s claim should be dismissed because the contractor failed to provide “a mathematical basis for any portion of its $100,000 claim or [to] assign a specific dollar value to any component thereof.” The ASBCA disagreed, however, stating:
It is well-settled that neither the CDA nor its implementing regulations require submission of a detailed cost breakdown or other specific cost-related documentation with the claim. Instead, the contractor need only submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim. See Government Services Corp., ASBCA No. 60367 (June 20, 2016).
Of course, this does not permit a contractor to “wing-it.” A contractor submitting a claim must certify, among other things, that the claim is made in good faith, that the supporting data are accurate and complete to the best of the certifying person’s knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable. A mere estimate will not satisfy the contractor’s burden. And, a well-supported claim is more likely to be granted by the contracting officer or the board of contract appeals. Still, the ASBCA’s decision does ease the contractor’s burden to get its claim in the door.
While we’re on the subject of a “sum certain,” another issue that befuddles contractors is how to submit a claim when the changed work is not completed. Contractors could wait until the contract is over and all costs are known, but that might require the contractor to finance the extra work for several years. Fortunately, that is not necessary, as numerous decisions have held that a claim that includes a “sum certain” for work already performed and a good faith estimate or extrapolation for work remaining to be done satisfies the CDA’s requirements.
Finally, remember that a claim for “contract interpretation” also qualifies as a CDA claim. In many cases, submitting a claim for contract interpretation may help the contracting officer and appeals board focus on the real issue in dispute and avoid or at least delay distracting audits and issues of proof.
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