/>iIn Appeal of – JE Dunn Construction Co., the Armed Services Board of Contract Appeals considered and denied the government’s post-hearing motion to dismiss JE Dunn’s complaint for failure to submit sums certain for each of its three claims to the contracting officer. JE Dunn filed its appeal in January 2022 seeking damages related to government-directed changes on an HVAC replacement project in New York.
In August 2022, the board scheduled a four-day hearing on the appeal to commence on February 28, 2023. “During the hearing, the Board raised the issue of the Board’s jurisdiction, asking the parties whether the three components of the appeal… were the subject of separate sums certain in the claim presented to the contracting officer.” Both parties deferred comment to their post-hearing briefs. The parties filed post-hearing briefs, including briefing on the sum certain issue, in April and May 2023.
In August 2023, the United States Court of Appeals for the Federal Circuit “held that the requirement to state a sum certain in submitting a claim under the Contract Disputes Act (CDA), is a mandatory but nonjurisdictional requirement subject to forfeiture by the government.” (citations omitted)
The government had originally pursued its motion to dismiss on jurisdictional grounds but asked the board to reconsider as a motion to dismiss for failure to state a claim under FRCP Rule 12(b)(6) after the Federal Circuit’s holding.
Regardless of how the motion was characterized, the board concluded that the government had forfeited its right to challenge JE Dunn’s satisfaction of the sum-certain requirement by failing to raise the issue until after the merits hearing. The government relied on FRCP Rule 12(h)(2), which provides that a challenge under FRCP Rule 12(b)(6) may be raised at trial, to argue that its motion was timely and not waived. The board disagreed because the board, rather than the government, raised the issue at trial:
The government’s position is unavailing. The Board’s sua sponte questioning for jurisdictional purposes whether the sum certain requirement had been satisfied is not the equivalent of the government challenging whether that requirement had been satisfied. The government had the opportunity—on its own initiative or in response to the Board’s having raised the issue—to take the position before or during the hearing on the merits that JE Dunn had not satisfied the sum-certain requirement. The government did not do so. Having waited until after the hearing on the merits to request dismissal, on sum-certain grounds, for lack of jurisdiction or failure to state a claim upon which relief can be granted, the government forfeited its right to challenge JE Dunn’s satisfaction of the sum-certain requirement. (citations omitted)
Having concluded that the government forfeited its defense, the board denied the motion to dismiss.
The board’s decision in Appeal of – JE Dunn is a useful reminder to parties to raise objections and defenses in a timely and compliant manner. A party’s failure to adequately preserve a defense or objection may result in the waiver of an otherwise meritorious argument.
