If your Claim includes an item for damages with an amount “TBD,” you could lose the entire Claim.
A Claim is a written demand by a contracting party for payment of a “sum certain” or other relief. F.A.R. 52.233-1(c)
For example, a Contractor agreed to provide facilities maintenance and repair, among other services, at Fr. Meade, Maryland. The Contractor submitted a Claim to the Contracting Officer for several cost items. Among them was an item for “anticipatory lost profits” in an amount “TBD. Although portions of the Claim were for definite amounts, the ASBCA dismissed the entire appeal because at least one part of the Claim was not for a “sum certain.” The part of the Claim for an amount “TBD” tainted the entire Claim.
The Board provided some guidance for Contractors. If a “sum certain” cannot be calculated, then a Contractor should specifically describe:
- How to perform a calculation for a sum certain;
- What information the calculation would be based;
- Where such information exists;
- What the Contractor has done to acquire such information; and
- That, due to no fault of the Contractor, such information is not available.
If you can’t calculate a sum certain or you doubt your explanation, separate the uncertain amount from the rest of your Claim and submit it as a separate claim. At least then, it won’t taint the rest of your Claim.
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim for time and money.
On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
