Government Contractors: Ask for a “Sum Certain" in Your Claim - Heavy Construction Law Blog

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.

Appeal of Melwood Horticultural Training Center, Inc., Armed Services Board of Contract Appeals No. 60666, (June 7, 2017).

Published On: November 28, 2017

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