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.

ECC International Constructors, LLC v. Secretary of the Army, U.S. Court of Appeals, Federal Circuit, Case No. 21-2323 (August 22, 2023).

Published On: August 27, 2023

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It’s Good to Be the King

October 16, 2018|

Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.”  It’s also true when asserting claims against the State or an arm or agent of the State.

Manage the Risk of Construction Changes

August 15, 2018|

Almost any problem on a construction project can be traced to one of two things: changes or delays (even delays are really just changes).  As in life, embrace and manage the change don’t run from it.

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Jonathan J. Straw
Best Lawyers® - Jonathan Straw | 2026

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