06/30/2021

Editor's Notes

The Contract Disputes Act defines in basic terms the requirements for a monetary claim under a federal contract. The claim must be a demand, asserted as a matter of contractual right, for a “sum certain” of compensation. A sum certain seems self-explanatory, but a problem arises due to the underlying definition of a claim. A “claim” is not the contractor’s whole case against the government; the case may consist of multiple claims, each with its own set of operative facts. A contractor is expected to price each of those claims. This facilitates better government evaluation and settlement of claims.

 

A contractor submitted a delay claim for a sum so certain it was priced down to the cent. This was not a valid claim, however, because it was actually two distinct claims arising from different sets of operative facts. One was for delay during the design phase of the project. The other was for delay during construction. By submitting only a total, bottom-line price, the contractor had failed to demand a sum certain.

 

The other case in this issue involved a prime contractor’s delay in releasing retainage to a subcontractor. The contractor’s defenses to payment—an omitted engineer’s stamp and refusal to follow an oral directive for extra work—were insufficient. The contractor was liable for interest and attorney fees under a state prompt payment statute.

 

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