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.
Linking Obligations
If you want to bind the subcontractor to the prime in every way the same as the prime is bound to the owner, then the incorporation clause of the subcontract should be: . . .
Termination of Government Contracts for Convenience (T4C)
Imagine you’re a Government Contractor under a firm, fixed-price contract and you’ve done nothing wrong. Nevertheless, the Government has decided to unilaterally end its contract with you. Yes, the Government can do this...
Government Contractors: Build a Snowman in August
As a Government Contractor, when have you agreed to perform a certain way, but later realized that another way is better for everybody? When the Government agrees, expressly or impliedly, to the alternative performance, it waives a credit for the unperformed work.
Construction Dispute Settlement: Dealing with Details
Reap the benefits of settling a construction dispute by doing these things.
E-mail Signature Not Enough to Certify a Claim
Construction project professionals routinely send e-mails with “signatures,” which typically include the sender’s typewritten name, title, contact information, and/or company logo. But, this sort of e-mail “signature” is not enough to certify a claim to the Government.
Government Contractors: Ask for a “Sum Certain” in Your Claim
If your Claim includes an item for damages with an amount “TBD,” you could lose the entire Claim.
Contractors: Be Aware When Contracting with Virginia Public Agencies
Without a valid contract, a Virginia public entity has no duty to to pay for any of your work.
Constructive Acceleration
Contractors know that time is money. So, the point is clear when expressly told to “Speed Up! Go Faster!”
But, what do you […]
Construction Contracts & Whodunit
Imagine reading a crime novel and just when you think you figured out whodunit, a plot twist suggests a different culprit. In construction contracting, finding the right answer can be a difficult task when
