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.
Navigating the Requirements for Claims against Virginia Public Entities
Contractors making claims against Virginia public entities must follow ALL applicable requirements. Such requirements may be found in several places, so check […]
Virginia General Contractors Not Protected from Pre-Work Claim Waivers
On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights […]
Adding Terms to a Government Contract without Saying So
Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how?
Differing Site Conditions: When the Part Does Not Equal the Whole
If all apples are fruit, then why are all fruit not apples?
Forum Selection Can Be a Home-Court Advantage
I promise that any disputes between us will be argued at your house. Time passes and a dispute begins to brew. Now, I want to argue at my house, not at yours. You pay costs to argue at my house that you wouldn’t have incurred had I done as agreed. Should I have to reimburse your costs?
No-Damage-for-Delay and Owner-Related Dispute Clauses are No Defense to Surety Liability Under Miller Act
Prime Government Contractors - you may need to update your interim payment waivers.
Contractual Fairness is Whatever the Parties’ Agreed
When you know a current action or inaction is wrong, but you do not object, should you be allowed to object later?
Which Comes First – Specifications or Drawings?
Sometimes it's not better to ask for forgiveness after-the-fact.
Government Contract Claims: When Appeal is Rejection of Settlement
Without a reservation of rights, appealing a Contracting Officer’s Final Decision is a rejection of any offer of payment or settlement included therein. So, the contractor had only three options.










