M.J. Hughes Construction, Inc. ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
M.J. Hughes Construction, Inc. ) ASBCA No. 61782)
Under Contract No. W9128F-14-C-0072 )
APPEARANCES FOR THE APPELLANT: Philip E. Beck, Esq.
Jonathan R. Mayo, Esq.
Parker A. Lewton, Esq.
Smith Currie & Hancock LLP
Atlanta, GA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Stacy K. Birkel, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Omaha
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
On September 12, 2018, the government filed a motion to dismiss for lack of
jurisdiction contending that M.J. Hughes Construction's (MJH) claim failed to state a
sum certain. We have jurisdiction to decide the motion pursuant to the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion.
STATEMENT OF FACTS FOR THE PURPOSES OF THE MOTION
1. On January 30, 2018, MJH submitted a certified claim related to U.S. Army
Corps of Engineers (COE) Contract W9128F-14-C-0072 for spillway channel wall
replacement and slab repairs at the Fort Peck Dam, Montana (R4, tab 4). MJH demanded
$2,000,887.00 and an additional 345 days schedule extension (id. at 1). MJH explained:
As noted below, this Claim is presented in three
parts. For any portion of time or cost that overlaps
between Claim Parts 1 and 2, MJH is not seeking to
recover the same damages or time extensions more than
once. When entitlement has been determined for all Claim
parts, MJH will revise its calculations to ensure there is no
"double-dipping" across the awarded recovery. This also
applies to the calculation ofMJH's Home Office Overhead
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I (HOOH) rate, and Additional Rental Costs, across Claim
Parts 1 and 2. Once entitlement is determined, MJH will
revise the rate accordingly to ensure no recovery is
duplicated.
(Id. at 1) MJH acknowledged that the COE had already paid $7,329.81 and granted
194 days extension that would be credited against any time and cost award it might
receive (id. at 2).
2. MJH's claim was presented in three parts: Part I - Delay Impacts;
Part 2 - Additional Perimeter Demolition and Cold Weather Impacts; and
Part 3 - Liquidated Damages and Fees for REA Preparation and Negotiation Counsel
(R4, tab 4 at 3). The claim included a table summarizing the claims for the three parts:
Cost Summary Table
Description Cost Days
Claim Part 1 - Delay Impacts $1,446,442.83 345 days
Claim Part 2 - Additional Perimeter Demolition $462,810.67 55 days
& Cold Weather Impacts (concurrent
delay)
Claim Part 3 - Legal Fees and Liquidated $91,633.50
Damages
TOTAL $2,000,887.00 345 days
(R4, tab 4 at 3) The claim included a more detailed summary of costs for each of the
three parts (R4, tab 5 at 33, tab 7 at 8, tab 9 at 1).
3. As alluded to above, MJH noted that overlap in Parts 1 and 2 of the claim
could require recalculation of the damages (R4, tab 4 at 1). More specifically, Part 2
of the claim specified that two particular components of its costs would need to be
recalculated if the government provided relief in Part I of the claim (R4, tab 7
at 240-41 ). These portions were costs for rental of equipment and home office
overhead, for which MJH provided monthly and daily costs respectively (id.). These
were the only cost components of Part 2 of the claim that were dependent upon what the
contracting officer (CO) decided in Part 1 of the claim, and no portion of Part 3 was
dependent upon Parts 1 or 2 (see R4, tab 9). Thus, we find that the CO could easily
calculate the exact amount requested by MJH for all portions of the claim were he or she
so inclined.*
i *Tobe sure, nothing prevented MJH from explicitly presenting this calculation with
l its claim, and it would certainly have made things simpler if it had done so.
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DECISION
Contentions of the Parties
The COE contends that MJH's three part claim, with the caveat that when
entitlement is determined it will adjust the amounts to ensure that there is no double
recovery, does not satisfy the requirement for a sum certain. It also contends that the
previous award of 194 days and $7,329.81 that were not accounted for in the claim
also do not satisfy the requirement for a sum certain. (Gov't mot. at 2-3) The COE
characterizes the claim as follows: "To state that the total amount owed is something
less than $2,000,887.00, in and of itself, is not a sum certain" (id. at 3).
MJH contends that the three parts to the claim each stating a specific sum
certain effectively gives the contracting officer adequate notice of the basis and
amount of the claim (app. opp'n at 2). Citing Computer Sciences Corporation,
ASBCA No. 56165, 10-2 BCA 134,572, MJH contends that overlapping parts of
claims does not defeat the sum certain requirement (app. opp'n at 3-4). As for the
$7,329.81 and 194 days extension, MJH contends that simple arithmetic (subtraction)
allows the contracting officer to calculate the amount awarded, if any.
Discussion
Federal Acquisition Regulation (FAR) 2.101, Definitions, provides in pertinent
part that "Claim' means a written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the payment of money in a sum
certain." We agree with MJH that Computer Sciences is similar and involves
overlapping claims that did not deprive the Board of jurisdiction. Each claim sought
a specific dollar amount which is the essence of a sum certain. Computer Sciences,
10-2 BCA 134,572 at 170,455. We agree with MJH that because the $7,329.81 and
194 days extension can be accounted for with "simple arithmetic" the sum certain is
not affected. See PHI Applied Physical Sciences, Inc., ASBCA Nos. 56581, 58038,
13 BCA 135,308 at 173,334 ("Although the amount sought was not expressly totaled
by appellant, a sum certain total is readily calculable by simple arithmetic"). Similar
reasoning applies to the overlapping portions of Parts 1 and 2 of the claim because the
CO could derive a sum certain through application of simple arithmetic, the sum
certain requirement is met.
We disagree with COE's characterization, "To state that the total amount owed
is something less than $2,000,887.00, in and of itself, is not a sum certain" (gov't mot.
at 3). Qualifications on the claimed amount can be a problem. In Ball Aerospace &
Technologies Corp., ASBCA No. 57558, 11-2 BCA 134,804 at 171,275, we listed
qualifications to a numeral amount that defeat its consideration to be a sum certain
such as: "approximately" (JP. Donovan Construction, Inc., ASBCA No. 55335,
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[
10-2 BCA ,r 34,509 at 170,171, appeal docketed, No. 11-1162 (Fed. Cir. 2011): Van
Elk, Ltd., ASBCA No. 45311, 93-3 BCA ,r 25,995 at 129,237); "at least" (Precision
Standard, Inc., ASBCA No. 55865, 11-1 BCA ,r 34,669 at 170,788); "no less than"
(Sandoval Plumbing Repair, Inc., ASBCA No. 54640, 05-2 BCA ,r 33,072
at 163,933); ··well over" (Eaton Contract Services, Inc., ASBCA No. 52888 et al.,
02-2 BCA, 32,023 at 158,269); and ··in excess of' (id. at 158,267). We suspect that
·'something less than" might constitute an unacceptable qualification defeating a sum
certain. However, the COE's characterization is wrong. MJH did not present the
claim as "something less than" $2,000,887.00. MJH's claim states a specific dollar
amount of$2,000,887.00 that may need to be adjusted based on the CO's entitlement
decision so as to avoid double recovery. The fact that a sum certain might need to be
adjusted in the future does not invalidate the sum certain or jurisdiction. Computer
Sciences Corp., ASBCA No. 27275, 83-1 BCA ,r 16,452 at 81,843 (It is not an
improper qualification of the claim for appellant to notify the Government therein of a
potential upward adjustment of the claimed amount); See also Madison Lawrence,
Inc., ASBCA No. 56551, 09-2 BCA ,r 34,235 at 169,207; South Carolina Public
Service Authority, ASBCA No. 53701, 04-2 BCA ,r 32,651 at 161,600.
Each of the three parts of this claim is stated in a sum certain - Part 1 Delay
Impacts $1,446,442.83; Part 2 Additional Perimeter Demolition & Cold Weather
Impacts $462,810.67; and Part 3 Legal Fees and Liquidated Damages $91,633.50 and
the total of $2,000,887.00 is a sum certain (SOF ,r 2). The possibility of future
adjustment is not disqualifying and the payment of$7,329.81 can simply be subtracted
from the amounts awarded if any. Therefore, we have jurisdiction.
CONCLUSION
Based on the above holdings, we deny the COE's motion to dismiss for lack of
jurisdiction.
Dated: January 7, 2019
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I I concur
RICHARD SHACKLEFORD f REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of
the Armed Services Board of Contract Appeals in ASBCA No. 61782, Appeal of
M.J. Hughes Construction, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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