Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). A judge’s power is not automatic. Every court must first decide if it has the power to decide the parties’ dispute – whether it has jurisdiction over the subject matter and the parties involved. Without such power, no further decisions can be made.
Based upon recent guidance from the U.S. Supreme Court (Wilkins v. U.S., No. 21-1164, March 28, 2023), the U.S. Court of Appeals for the Federal Circuit held that the requirement to state a sum certain under the Contract Disputes Act of 1978 is NOT a jurisdictional requirement. Failure to state a sum certain does NOT deprive the decision-maker of power. Arguments regarding sum certain are subject to “disagreement on the merits” not dismissal for lack of jurisdiction because the claimant “organiz[ed] its sub-claims in a manner different from how the [Armed Services Board of Contract Appeals] would sub-divide claims” or how the Government would have preferred the claimant have sub-divided its claims. Although “a deficient sum certain may in some circumstances be a reason to reject all or part of a claim, it does not mean the Board lacks jurisdiction entirely.” The Federal Circuit did not describe or exemplify “some circumstances,” so stay tuned for what that means.
Claimants should still state a sum (or sums) certain or specific in their claims, no estimates or place-holders (see another post on this point). But now, if claimants are not specific, it can be cured without depriving the decision-maker of power to resolve the disputes.
Trick or Treat in Government Contract Claims
Without a request for a contracting officer’s final decision, claimants may seek treats, but get tricked instead.
Owner Nonpayment is No Defense to Miller Act Claim
As if you needed confirmation that the Federal Miller Act is a powerful tool for unpaid subcontractors, this is it. Even when a Prime ordered and accepted the Sub’s work, but didn’t have to pay under the Subcontract, the Subcontractor still. . . .
Trust, but Verify
Rely at your own risk upon a Contracting Officer’s statements when statutes or contract provisions may conflict.
Payment for Verbal Changes When a Writing was “Required”
Even if your agreement can only be modified by a writing, you may still have a good argument to be paid for extra work.
Pirates and Arbitration
How does a pirate solve a dispute (besides walking the plank)?
Bases Covered?
Contractors, will your current insurance policy cover “your work” as a joint venture partner? The typical answer is NO.
Two Paths at the Same Time to the Same Place
“Two roads diverged in a wood, and . . .” the Prime Contractor had to take both roads at the same time to the same place.
Rules, Which Rules?
Good Idea: Include a choice of law clause in your contract to promote consistency and predictability (while reducing potential costs and risk).
Government Liability for Third-Party Delays
Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.
