Case: 21-2323 Document: 54 Page: 1 Filed: 08/22/2023
United States Court of Appeals
for the Federal Circuit
______________________
ECC INTERNATIONAL CONSTRUCTORS, LLC,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
______________________
2021-2323
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in No. 59586, Administrative Judge Owen C. Wilson,
Administrative Judge Richard Shackleford, Administra-
tive Judge Timothy Paul McIlmail.
______________________
Decided: August 22, 2023
______________________
ROY DALE HOLMES, Cohen Seglias Pallas Greenhall &
Furman, Philadelphia, PA, argued for appellant. Also rep-
resented by MICHAEL H. PAYNE.
CORINNE ANNE NIOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for appellee. Also represented by BRIAN
M. BOYNTON, PATRICIA M. MCCARTHY.
______________________
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2 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
Before PROST, LINN, and CUNNINGHAM, Circuit Judges.
PROST, Circuit Judge.
ECC International Constructors, LLC (“ECCI”) ap-
peals a decision of the Armed Services Board of Contract
Appeals (“Board”) dismissing its claim for lack of jurisdic-
tion. The claim stems from a contract the U.S. Army Corps
of Engineers (“USACE”) awarded ECCI in 2010 to design
and build a military compound in Afghanistan. In 2014,
ECCI filed a claim seeking compensation for construction
delays allegedly attributable to the government. After six
years of unsuccessful settlement discussions between the
government and ECCI, followed by a nine-day hearing on
the merits before the Board, the government—three
months after the hearing—moved to dismiss ECCI’s claim
for lack of subject-matter jurisdiction for failure to state a
“sum certain.” The Board granted the government’s mo-
tion. ECCI appeals.
We consider sua sponte whether the requirement (as
established by the Federal Acquisition Regulation (“FAR”))
that claims submitted under the Contract Disputes Act
(“CDA”) state a “sum certain”—i.e., specify the precise dol-
lar amount sought as relief—is jurisdictional. For the rea-
sons below, we conclude that the sum-certain requirement
is a nonjurisdictional rule subject to forfeiture. Accord-
ingly, we reverse the Board’s dismissal and remand for pro-
ceedings consistent with this opinion.
BACKGROUND
We first outline the nature and consequences of juris-
dictional rules before turning to the facts of this case.
I
The Supreme Court in recent years has clarified the
scope of the term “jurisdiction.” “Jurisdiction, [the] Court
has observed, is a word of many, too many, meanings.” Wil-
kins v. United States, 143 S. Ct. 870, 875 (2023) (quoting
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ECC INTERNATIONAL CONSTRUCTORS, LLC v. 3
SECRETARY OF THE ARMY
Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006)). In-
creasingly, “the Court has undertaken to ward off profli-
gate use of the term.” Fort Bend Cnty., Tex. v. Davis, 139
S. Ct. 1843, 1848 (2019) (cleaned up) (quoting Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)). Properly
construed, “the word ‘jurisdictional’ is generally reserved
for prescriptions delineating the classes of cases a court
may entertain (subject-matter jurisdiction) and the per-
sons over whom the court may exercise adjudicatory au-
thority (personal jurisdiction).” Id. These rules are
distinct from “nonjurisdictional claim-processing rules,
which ‘seek to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at
certain specified times.’” Id. at 1849 (quoting Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)).
“Characterizing a rule as a limit on subject-matter ju-
risdiction ‘renders it unique in our adversarial system.’”
Id. (quoting Auburn, 568 U.S. at 153). “Harsh conse-
quences attend the jurisdictional brand.” Id. (cleaned up).
As the Supreme Court has noted, “[j]urisdictional rules
may also result in the waste of judicial resources and may
unfairly prejudice litigants.” Henderson, 562 U.S. at 434.
Because objections to subject-matter jurisdiction may be
raised at any time, “a party, after losing at trial, may move
to dismiss the case because the trial court lacked subject-
matter jurisdiction.” Id. at 434–35. “Indeed, a party may
raise such an objection even if the party had previously
acknowledged the trial court’s jurisdiction. And if the trial
court lacked jurisdiction, many months of work on the part
of the attorneys and the court may be wasted.” Id. at 435.
Further, “courts must enforce jurisdictional rules sua
sponte, even in the face of a litigant’s forfeiture or waiver.”
Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1112 (2023).
“Because the consequences that attach to the jurisdic-
tional label may be so drastic,” the Supreme Court has
“urged that a rule should not be referred to as jurisdictional
unless it governs a court’s adjudicatory capacity.”
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4 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
Henderson, 562 U.S. at 435. In light of the Supreme
Court’s direction to “police this jurisdictional line,” Wilkins,
143 S. Ct. at 876, we consider whether the FAR require-
ment to state a sum certain in bringing a claim under the
CDA, 41 U.S.C. §§ 7101–7109, is indeed jurisdictional.
II
This case presents facts that reflect the concerns un-
derlying misapplication of the jurisdictional label.
In September 2010, the USACE awarded ECCI Con-
tract No. W912ER-10-C-0054 to design and construct a
Special Operations Forces Joint Operations Center com-
pound at Mazar-e-Sharif, Afghanistan, for $29,186,338.00.
Shortly after beginning work on the project, ECCI alleges
it began experiencing delays. On February 12, 2014, ECCI
submitted a request for equitable adjustment to the con-
tracting officer pursuant to the CDA seeking
$13,519,913.91 for 329 days of alleged government delays.
J.A. 47. ECCI’s claim asserted that “significant delays
caused by the [g]overnment during the project, hindering
[ECCI’s] ability to efficiently complete the project[,] . . . .
entitle ECCI to a time extension for the contract as well as
financial compensation, as requested in accordance with
the contract.” J.A. 54.
ECCI structured its delay claim into three categories of
government-caused delay: (1) delay in reviewing the 95%
and 100% design submissions (“design delay”); (2) delay as-
sociated with directives to perform additional work beyond
the scope of work or changed contract requirements (“addi-
tional work delay”); and (3) delay associated with changed
security requirements (“security changes”). Id. The claim
and its attachments included a chart summarizing the “to-
tal days of critical path impact experienced by ECCI and
its primary subcontractors” each month, J.A. 150 (claim,
Figure 34); a table breaking down the critical path impact
days for various aspects of the 95% and 100% design sub-
missions, J.A. 156–62 (Attachment A); and a cost estimate
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report with estimates for direct costs (e.g., labor, labor
overhead, equipment, and subcontractors), indirect costs
(e.g., general and administrative expenses), and daily costs
for each month in which delay occurred, J.A. 315–64 (At-
tachment W). Although ECCI’s claim requested a contract-
ing officer’s final decision, ECCI did not receive a final
decision from the contracting officer. ECCI accordingly
considered the nonresponse a deemed denial of its claim. 1
On October 23, 2014, ECCI filed an appeal with the
Board, which docketed the appeal as ASBCA No. 59586.
J.A. 1407. And so began a complex negotiation and litiga-
tion history. Soon after filing its appeal, ECCI entered set-
tlement discussions with USACE, prompting the Board to
initially stay the case through July 2015. After initial set-
tlement conferences proved unfruitful, the Board lifted the
stay. The parties then began discovery. J.A. 629.
The government next tried to narrow the scope of
ECCI’s claim. For example, in December 2016, the govern-
ment sought to dismiss a discrete portion of ECCI’s delay
claim related to the fire suppression sprinkler system for
failure to state a sum certain. J.A. 398–403; J.A. 625.
Later, in 2019, the Board granted summary judgment to
the government on other discrete issues, including ECCI’s
security changes claim, which this court affirmed. ECC
Int’l Constructors, LLC, ASBCA No. 59138, 19-1 BCA
¶ 37,252, 2019 WL 495998 (Jan. 24, 2019), aff’d, 817 F.
App’x 952 (Fed. Cir. 2020).
Meanwhile, even five years after ECCI submitted its
claim, negotiation efforts continued. The parties engaged
in an Alternative Dispute Resolution (“ADR”) process with
a Board judge serving as mediator in early September
1 A denial is implied from any failure by the contract-
ing officer to issue a decision on a contract claim within the
required time period. 41 U.S.C. § 7103(f)(5).
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6 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
2019, followed by a second round of ADR in late September
and early October 2019. These mediation attempts also
proved unsuccessful.
From February 24, 2020, to March 6, 2020, six years
after ECCI submitted its claim, the Board held a full hear-
ing on the merits of the delay claim (ASBCA No. 59586),
consolidated with a related claim arising out of the same
contract (ASBCA No. 59643). 2 J.A. 615. ECCI states, and
the government does not appear to dispute, that at no point
before or during the nine-day hearing did the government
or the Board raise any issue about the sum-certain require-
ment. 3
On June 23, 2020, three months after the hearing and
during post-hearing briefing, the government filed a mo-
tion to dismiss for lack of jurisdiction, arguing that ECCI’s
February 12, 2014 claim—filed over six years prior—failed
to state a sum certain for each distinct claim. The govern-
ment contended that ECCI’s claimed delays for (1) the 95%
and 100% design submissions and (2) other additional
work each relied on their own set of operative facts, and
therefore were separate claims requiring their own sum
certain. ECCI lodged its objection to the government’s mo-
tion in July 2020, arguing that the claim provides ample
2 Although consolidated for purposes of the hearing,
the Board issued a separate decision in ASBCA No. 59643
partially dismissing that claim on jurisdictional grounds
for failure to state a sum certain. ECC Int’l Constructors,
LLC, ASBCA No. 59643, 21-1 BCA ¶ 37,967, 2021 WL
5561118 (Nov. 10, 2021). ECCI’s appeal of that dismissal
is docketed in this court as No. 22-1368.
3 Oral Arg. at 9:27–10:01, 27:41–28:10, No. 21-2323,
available at https://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=21-2323_05052023.mp3. As stated, the gov-
ernment previously raised a sum-certain issue only for a
discrete, minor portion of the claim. J.A. 398–403.
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documentation showing common and related operative
facts for each delay event. J.A. 1891.
On May 17, 2021, the Board granted the government’s
motion and dismissed the overall claim. ECC Int’l Con-
structors, LLC, ASBCA No. 59586, 2021 WL 2311891 (May
17, 2021) (J.A. 1–6). The Board found that “ECCI’s claim
submission to the contracting officer sets forth a bottom-
line sum certain, but does not set forth sums certain for any
of the discrete sub-claims that comprise that submission.”
J.A. 4. The Board concluded that the sub-claims “fall into
two categories: (1) the 95% and 100% design submissions;
and (2) other additional work or contract changes. Each of
these categories relies upon its own set of operative facts,”
and therefore requires a separate sum certain. J.A. 4–5.
The Board additionally found that the claim submission
“breaks the $13,519,913.91 demand amount into cost ele-
ments (e.g., labor, labor overhead, equipment, etc.), but
does not break it down by particular delay categories or
events.” J.A. 2. ECCI filed a motion for reconsideration
alleging that the sum certain could be ascertained for each
sub-claim using simple math based solely on the figures
provided in its claim, attaching a Sum Certain Calcula-
tions Spreadsheet. J.A. 596–606 (motion); J.A. 608–11
(spreadsheet). On July 15, 2021, the Board rejected ECCI’s
motion for reconsideration.
ECCI appeals. We directed the parties to address at
oral argument and in supplemental briefing whether the
sum-certain requirement is jurisdictional in light of recent
Supreme Court precedent. We now turn to that question.
DISCUSSION
In the vast majority of cases, the distinction between
whether the sum-certain requirement is jurisdictional or
nonjurisdictional will be of little, if any, consequence. As
discussed below, there is no dispute that the need to state
a sum certain in submitting a claim under the CDA is a
mandatory rule provided for in the FAR. In many cases,
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8 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
we think it’s fair to presume that a claim lacking a sum
certain is promptly denied by the contracting officer or dis-
missed on appeal, allowing, if appropriate, the claimant to
timely revise and refile its claim to specify the sum certain.
This case is different, and reflects the draconian conse-
quences of a jurisdictional rule: a late-filed motion chal-
lenging jurisdiction can thwart both the claimant’s ability
to recover and any opportunity to timely refile.
The unique facts of this case prompt us to reexamine
the nature of the sum-certain requirement. We first turn
to the Supreme Court’s recent guidance that a clear state-
ment from Congress is necessary to consider a rule juris-
dictional and then proceed to analogize the sum-certain
requirement to other rules the Supreme Court has deemed
nonjurisdictional. We conclude by considering the poten-
tial for forfeiture of an objection relating to a nonjurisdic-
tional rule.
I
To determine whether the sum-certain requirement is
jurisdictional, our inquiry begins with the statute. “Con-
gressional statutes are replete with directions to litigants
that serve as preconditions to relief,” such as filing dead-
lines, exhaustion requirements, or limitations “on a stat-
ute’s scope, such as the elements of a plaintiff’s claim for
relief.” MOAC Mall Holdings LLC v. Transform Holdco
LLC, 143 S. Ct. 927, 935–36 (2023) (cleaned up). “Congress
can, if it chooses, make compliance with such rules ‘im-
portant and mandatory.’” Id. at 936 (quoting Henderson,
562 U.S. at 435). “But knowing that much does not, in it-
self, make such rules jurisdictional.” Id.
Instead, as instructed by the Supreme Court, we in-
voke a clear statement rule and “treat a procedural re-
quirement as jurisdictional only if Congress ‘clearly states’
that it is.” Boechler, P.C. v. Comm’r, 142 S. Ct. 1493, 1497
(2022) (quoting Arbaugh, 546 U.S. at 515). “Congress need
not ‘incant magic words,’ but the ‘traditional tools of
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statutory construction must plainly show that Congress
imbued a procedural bar with jurisdictional conse-
quences.’” Id. (first quoting Auburn, 568 U.S. at 153; and
then quoting United States v. Wong, 575 U.S. 402, 410
(2015)). The “statement must indeed be clear; it is insuffi-
cient that a jurisdictional reading is plausible, or even bet-
ter, than nonjurisdictional alternatives.” MOAC, 143 S. Ct.
at 936 (cleaned up).
In this case, it could not be more evident that Congress
has not provided a clear statement: the sum-certain re-
quirement is not even in the CDA itself. The Contract Dis-
putes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383, is
currently codified at 41 U.S.C. §§ 7101–7109. Section
7103, titled “Decision by contracting officer,” identifies the
procedures by which either a contractor or the government
submits claims under the statute:
(a) Claims generally.--
(1) Submission of contractor’s claims to
contracting officer.--Each claim by a con-
tractor against the Federal Government re-
lating to a contract shall be submitted to
the contracting officer for a decision.
(2) Contractor’s claims in writing.--Each
claim by a contractor against the Federal
Government relating to a contract shall be
in writing.
(3) Contracting officer to decide Federal
Government’s claims.--Each claim by the
Federal Government against a contractor
relating to a contract shall be the subject of
a written decision by the contracting of-
ficer.
(4) Time for submitting claims.--
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10 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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(A) In general.--Each claim by a con-
tractor against the Federal Govern-
ment relating to a contract and each
claim by the Federal Government
against a contractor relating to a con-
tract shall be submitted within 6 years
after the accrual of the claim.
41 U.S.C. § 7103(a)(1)–(4).
Although § 7103(a) sets forth the requirements and
timing for submitting a claim, it identifies no requirement
that a claim must state a sum certain. In fact, not a single
provision of § 7103 mentions the term “sum certain.” Id.
§ 7103. 4
The other statutory provisions of the CDA are no more
instructive. Section 7101 of the statute, titled “Defini-
tions,” does not define the term “claim.” Id. § 7101. Nor
does it define, or even mention, a sum certain. Id. Sec-
tion 7102 establishes the applicability of the chapter,
which has no bearing on the sum certain. Id. § 7102. Sec-
tion 7104, titled “Contractor’s right of appeal from decision
by contracting officer,” permits a contractor to appeal a
contracting officer’s decision “to an agency board” or to
“bring an action directly on the claim in the United States
4 Admittedly, § 7103(b), which applies to claims over
$100,000, requires contractors to certify that “the amount
requested accurately reflects the contract adjustment for
which the contractor believes the Federal Government is
liable.” Id. § 7103(b)(1)(C). But that requirement merely
ensures that the contractor submits an accurate, good-faith
monetary request to the government; it does not require
any particular degree of specificity in the claim. Neither
party has argued that this provision is akin to the sum-
certain requirement at issue.
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Court of Federal Claims.” Id. § 7104. Again, although the
provision uses the word “claim,” it does not define what a
claim is or identify what stating a claim requires. The re-
maining sections of the CDA, in turn: establish the agency
boards of contract appeals, id. § 7105; prescribe agency
board procedures for accelerated and small claims, id.
§ 7106; provide for judicial review of agency board deci-
sions, id. § 7107; provide for payment of claims, id. § 7108;
and address payment of interest, id. § 7109. None of those
provisions mention a sum certain or explicitly define it as
part of a claim.
In fact, this court has long recognized that the CDA
does not define the elements of a claim; instead, we have
looked to the FAR for guidance. Securiforce Int’l Am., LLC
v. United States, 879 F.3d 1354, 1359 (Fed. Cir. 2018) (“Be-
cause the CDA does not define ‘claim,’ we look to the [FAR]
. . . .”); Northrop Grumman Computing Sys., Inc. v. United
States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (explaining
that “[t]he CDA establishes some prerequisites for a valid
claim,” such as that it be in writing, but the court assesses
“whether a claim is valid based on the [FAR], the language
of the contract in dispute, and the facts of the case”); Re-
flectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995)
(en banc) (“[T]he CDA itself does not define the term
‘claim.’”).
The FAR defines a claim in two instances. First, FAR
part 2, a general definitions section, defines a claim as:
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, the adjust-
ment or interpretation of contract terms, or other
relief arising under or relating to the contract.
FAR 2.101 (emphasis added). Second, FAR 52.233-1,
which addresses contract disputes, provides an identical
definition, including “the payment of money in a sum cer-
tain.” FAR 52.233-1(c).
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12 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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It’s true, as the government points out, that our prior
cases have identified the sum-certain requirement as juris-
dictional because the FAR defines a claim as a written de-
mand that seeks payment of money in a sum certain.
Securiforce, 879 F.3d at 1359. We most recently referred
to the sum-certain requirement as jurisdictional in Crea-
tive Management Services, LLC v. United States, 989 F.3d
955 (Fed. Cir. 2021). 5 In recent and intervening years,
however, the Supreme Court has provided significant addi-
tional guidance to clarify when rules should be considered
jurisdictional. For example, the Supreme Court recently
emphasized its clear statement rule in MOAC, under which
we must inquire whether Congress has clearly stated that
a requirement bears on a court’s jurisdiction. MOAC, 143
S. Ct. at 936 (“[W]e only treat a provision as jurisdictional
if Congress clearly states as much.” (emphasis added)
(cleaned up)). Our prior cases that did not cite to any stat-
utory language and relied solely on the FAR definition of a
claim to deem the sum-certain requirement jurisdictional
no longer control in light of recent Supreme Court guid-
ance. 6
5 Although our opinion in Creative Management dis-
cusses the sum-certain requirement and points to the FAR
definition of a claim as the basis for the requirement, the
decision in that case did not turn on whether the sum-cer-
tain requirement is jurisdictional. Creative Mgmt., 989
F.3d at 963 (affirming dismissal of declaratory judgment
action as untimely).
6 See Cal. Inst. of Tech. v. Broadcom, Ltd., 25 F.4th
976, 991 (Fed. Cir. 2022) (declining to follow prior decisions
in light of later guidance from the Supreme Court). Nota-
bly, other panels of our court have recently recognized this
clarification in Supreme Court guidance on jurisdiction.
See CACI, Inc.-Fed. v. United States, 67 F.4th 1145, 1151
(Fed. Cir. 2023) (revisiting the interested-party
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Supreme Court precedent, and in particular the princi-
ples articulated in recent Supreme Court decisions, reflects
that rules outside the statutory text are not jurisdictional. 7
In Hamer, the Supreme Court held that a court-made rule
regarding the time for filing an appeal is not jurisdictional.
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13,
22 (2017). The Court explained that the relevant time limit
“qualifies as jurisdictional only if Congress sets the time.”
Id. at 17. In that case, nothing in 28 U.S.C. § 2107 limited
a potential extension of time to file a notice of appeal when
the judgment loser received notice of the entry of judgment;
but Federal Rule of Appellate Procedure 4(a)(5)(C) did
“limit[] extensions of time to file a notice of appeal in all
circumstances.” Id. at 19. The Court recognized that “Rule
4(a)(5)(C)’s limit on extensions of time appears nowhere in
the text of § 2107(c).” Id. at 20. The Court emphasized that
if the relevant provision “appears in a statute, the limita-
tion is jurisdictional . . . otherwise, the time specification
fits within the claim-processing category.” Id. The Court
therefore concluded that “[b]ecause Rule 4(a)(5)(C), not
§ 2107, limits the length of the extension granted here, the
time prescription is not jurisdictional.” Id. at 21.
The Court’s clear statement rule, as exemplified by
Hamer, requires the same conclusion here. The CDA itself
does not require a claim to state a sum certain. Instead,
our prior cases have looked outside the statute to the FAR
requirement for bid protests and concluding it is not juris-
dictional); Lone Star Silicon Innovations LLC v. Nanya
Tech. Corp., 925 F.3d 1225, 1235–36 (Fed. Cir. 2019) (same
regarding our prior treatment of 35 U.S.C. § 281 as juris-
dictional).
7 The case before us is not one in which Congress del-
egated rulemaking authority to an agency with an express
grant or limit of the agency’s jurisdiction over certain mat-
ters.
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14 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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to articulate the various requirements for a claim. If Con-
gress intended for the sum-certain requirement to be juris-
dictional, it could have made such a statement in the
statute itself. It did not.
The parties, in large part, do not dispute that Congress
has not expressly spoken to the sum-certain requirement.
The government has not pointed to any statutory text re-
quiring a sum certain. The statutory text is simply not
there. Instead, the government urges us to find the sum-
certain requirement jurisdictional based on other consider-
ations.
First, the government argues that absent a statutory
definition, the court “construes ‘a statutory term in accord-
ance with its ordinary meaning,’” and that here, “[t]he or-
dinary meaning of ‘claim’ in the context of the CDA
requires a demand for a sum certain.” Appellee’s Suppl.
Br. 12 (citing ClearCorrect Operating, LLC v. ITC, 810 F.3d
1283 (Fed. Cir. 2015)). It notes this court’s observation in
Reflectone that the ordinary meaning of the term “claim” is
“a demand for something due or believed to be due,” and,
to the extent the claim seeks money, the “dictionary defini-
tion of ‘claim’ supports . . . the requirement that the money
be sought as a matter of right.” Reflectone, 60 F.3d at 1576.
According to the government, this court “has thus properly
grounded the sum-certain requirement in the ordinary
meaning of the jurisdictionally-required statutory term.”
Appellee’s Suppl. Br. 13. The government further argues
that the FAR definition of a claim merely mirrors the ordi-
nary meaning of the term.
While we agree generally that courts may consider the
ordinary meaning of terms in a statute, the Supreme Court
has instructed that the “traditional tools of statutory con-
struction must plainly show that Congress imbued a proce-
dural bar with jurisdictional consequences.” Boechler, 142
S. Ct. at 1497 (emphasis added) (quoting Wong, 575 U.S. at
410). Again, “the statement must indeed be clear; it is
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insufficient that a jurisdictional reading is plausible.”
MOAC, 143 S. Ct. at 936 (cleaned up). Here, the term
“claim” can mean, in an ordinary sense, a demand for relief
that includes a specific monetary request. But such a def-
inition—even if it applied—does not equate to the FAR’s
more robust sum-certain rule that, as the rule has been in-
terpreted, requires a sum certain for each sub-claim. Fur-
ther, a claim does not always seek monetary relief at all.
See FAR 2.101 (“Claim means a written demand” seeking
“the payment of money in a sum certain, the adjustment or
interpretation of contract terms, or other relief arising un-
der or relating to the contract” (emphasis added)). Indeed,
the court in Reflectone recognized this distinction. Reflec-
tone, 60 F.3d at 1576 (noting that “the FAR requires a
‘claim’ to be a written demand seeking a sum certain (or
other contract relief) as a matter of right . . . [which] is con-
sistent with the ordinary meaning of the term ‘claim’: ‘a de-
mand for something due or believed to be due.’” (quoting
Webster’s Ninth New Collegiate Dictionary 244 (1990))).
We are not convinced that Congress demonstrated any in-
tention for the sum-certain requirement to delineate the
jurisdiction of the boards or courts when a sum certain is
not necessarily an inherent part of every claim.
Our conclusion is buttressed by the fact that Congress
specifically identified some core aspects of a claim in the
statute but omitted mention of the sum certain. The CDA
establishes that “[e]ach claim by a contractor against the
Federal Government relating to a contract shall be in writ-
ing.” 41 U.S.C. § 7103. The FAR includes this same re-
quirement, defining a claim as a “written demand.” FAR
2.101; id. 52.233-1(c). But Congress did not go as far as the
implementing regulations in defining the required ele-
ments of a claim, and Congress has not since elected to add
additional statutory requirements in light of the FAR’s
more demanding definition. Even if the FAR definition is
premised on the ordinary meaning of the term “claim,”
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Congress has not adopted the full scope of the FAR defini-
tion.
Second, the government points to two surrounding
statutory provisions (both of which identify a monetary
threshold) to support its argument that a written claim
that includes no demand for a sum certain cannot be a ju-
risdictionally required CDA claim. Appellee’s Suppl. Br.
13–14. First, it argues that because “section 7103(f)(1) es-
tablishes different rules governing the time in which the
contracting officer must issue a decision, depending on
whether the claim is for ‘$100,000 or less’ or ‘more than
$100,000,’” “[t]hese provisions make sense only if the claim
includes a sum certain.” Id. at 14 (citing 41 U.S.C.
§ 7103(f)(1)–(2)). Second, it points to § 7103(b), which re-
quires contractors to certify claims over $100,000, arguing
that “[u]nless the underlying claim is required to demand
a sum certain, the certification requirement would be im-
possible to enforce.” Id. (citing 41 U.S.C. § 7103(b)). We
think the government’s concerns are misplaced. The cited
provisions require notice only of the general amount of a
claim, a lower standard than the sum-certain requirement.
Here, for example, the government has not argued that
ECCI’s request for $13 million in relief failed to put the
contracting officer on notice of the general amount of the
claim. Moreover, whether or not the sum-certain require-
ment is jurisdictional, it is nonetheless a mandatory rule
that claimants must follow. A claim seeking monetary re-
lief must include a sum certain that advises the contracting
officer of the nature and amount of the relief sought. Be-
cause the requirement is mandatory, understanding the
sum certain as nonjurisdictional does not impact the con-
tracting officer’s ability to address the claim in the appro-
priate timeframe or to ascertain whether the contractor
has met the certification requirement.
Third, the government argues that unlike in “Wilkins
and MOAC, in which the statutes under consideration were
not linked to the relevant jurisdictional provisions,”
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“section 7104 is tied to, and incorporates, section 7103 and
its claim requirements.” Id. at 7 & n.3 (citing Wilkins, 143
S. Ct. at 872; MOAC, 143 S. Ct. at 937–38). Specifically,
the government argues that § 7103 requires a contracting
officer to decide a “claim by a contractor,” and § 7104, the
jurisdictional hook, references that claim by permitting a
contractor to appeal “a contracting officer’s decision [on the
claim] under [§] 7103.” Id. at 6–7 (citing 41 U.S.C.
§§ 7103(a), 7104(a)). 8 We disagree because, as discussed
above, although the statute links the claim in § 7103 to the
jurisdictional hook of § 7104, there is no statutory language
linking the sum certain to § 7104.
Accordingly, we conclude that Congress did not clearly
state that a claim submitted under the CDA must include
a sum certain in order for the Board or a court to exercise
jurisdiction.
II
Even if there were any doubt whether Congress in-
tended for the sum-certain requirement to be jurisdic-
tional, our view that the sum-certain requirement is
nonjurisdictional is further reinforced by recent Supreme
Court precedent.
A
We turn first to our conclusion that the sum-certain re-
quirement is analogous to other nonjurisdictional rules.
Courts have “characterized as nonjurisdictional an ar-
ray of mandatory claim-processing rules and other precon-
ditions to relief.” Fort Bend, 139 S. Ct. at 1849 (collecting
cases). These rules include, for example, filing deadlines;
preconditions to suit, like exhaustion requirements; or the
8 As previously noted, it is possible for a contractor
to pursue an appeal without a final decision by a contract-
ing officer, as was true in this case. 41 U.S.C. § 7103(f)(5).
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18 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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elements of a plaintiff’s claim for relief. MOAC, 143 S. Ct.
at 935–36. These rules are “important and mandatory,”
but they are not jurisdictional. Id. at 936 (cleaned up).
Although many of the rules the Supreme Court has
considered in recent years involve filing deadlines or other
time limitations, the Court has considered numerous cases
involving non-timing nonjurisdictional rules more analo-
gous to the sum-certain requirement here. See, e.g., San-
tos-Zacaria, 143 S. Ct. at 1114 (exhaustion); Fort Bend, 139
S. Ct. at 1850 (exhaustion); EPA v. EME Homer City Gen-
eration, L.P., 572 U.S. 489, 511 (2014) (requirement to
raise objections to rulemaking with reasonable specificity
during comment period); Gonzalez v. Thaler, 565 U.S. 134,
137 (2012) (requirement to indicate specific issue in certif-
icate of appealability).
In particular, we find instructive Arbaugh, where the
Court articulated a “distinction between two sometimes
confused or conflated concepts: federal-court ‘subject-mat-
ter’ jurisdiction over a controversy; and the essential ingre-
dients of a federal claim for relief.” 546 U.S. at 503. The
plaintiff in Arbaugh brought a Title VII action charging
sexual harassment. Title VII contains an “employee-nu-
merosity” requirement, under which only employers with
15 or more employees are subject to suit under Title VII.
Although the employer, Y & H, did not raise the employee-
numerosity requirement before or at trial, it filed a motion
to dismiss for lack of subject-matter jurisdiction two weeks
after a jury verdict in the plaintiff’s favor, which the trial
court granted and the Fifth Circuit affirmed. Id. at 509. In
reversing and remanding, the Court explained that the em-
ployee-numerosity requirement was not identified in Title
VII’s jurisdictional provision but instead “appears in a sep-
arate provision that ‘does not speak in jurisdictional terms
or refer in any way to the jurisdiction of the . . . courts.’” Id.
at 515 (citation omitted). The Court held that “when Con-
gress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as
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nonjurisdictional in character.” Id. at 516. In “[a]pplying
that readily administrable bright line,” it held that the em-
ployee-numerosity requirement of Title VII “is an element
of a plaintiff’s claim for relief, not a jurisdictional issue.”
Id.
The same analysis controls here. Because the sum-cer-
tain requirement does not appear in the CDA, we treat the
requirement as nonjurisdictional under the Court’s bright-
line rule. Under that rubric, the sum-certain requirement
is an element of a claim for relief—in other words, it is an
element of a CDA claim that a claimant must satisfy in or-
der to recover—rather than a jurisdictional rule that a
party could challenge after a trial on the merits. The re-
quirement is no less mandatory under this framework; it
does not, however, control the jurisdiction of the boards or
courts. 9
The government acknowledges recent case law in our
sister circuits interpreting analogous sum-certain require-
ments outside of the CDA as nonjurisdictional. For exam-
ple, in Copen v. United States, the Sixth Circuit held that
the Federal Tort Claims Act (“FTCA”) sum-certain require-
ment is not jurisdictional. 3 F.4th 875, 880–82 (6th Cir.
2021) (“[N]either governing precedent nor the structure of
the statute support the conclusion that Congress has
plainly attached a jurisdictional label to the sum certain
requirement in [28 U.S.C.] § 2675(b).”). In doing so, the
court recognized a change in the law based on Supreme
Court guidance and overturned its precedent. Id. at 880–
9 We have previously observed that although the re-
quirement is mandatory, “[t]he law does not require that a
CDA claim identify a precise monetary amount to state a
‘sum certain.’” Creative Mgmt., 989 F.3d at 962. The pri-
mary requirement is that the claim provide the other con-
tracting party with adequate notice of the basis and
amount of the claim. Id.
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20 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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81 (recognizing that the Sixth Circuit “has long referred to
these procedures as jurisdictional prerequisites to filing
suit” but concluding that the Supreme Court has since “had
more to say” about jurisdictional rules). Although the gov-
ernment cites cases in two other circuits interpreting that
same FTCA requirement as jurisdictional, the govern-
ment’s two examples both predate the Supreme Court’s
most recent efforts to rein in use of the jurisdictional label.
Appellee’s Suppl. Br. 15 n.7 (citing White-Squire v. USPS,
592 F.3d 453, 457 (3d Cir. 2010); Mader v. United States,
654 F.3d 794, 805–07 (8th Cir. 2011) (en banc)).
The close similarity between the sum-certain require-
ment and other requirements the Supreme Court has
deemed nonjurisdictional leads us to conclude that the
sum-certain requirement fits comfortably within the class
of mandatory, nonjurisdictional claim-processing rules
that concern the elements of a claim.
B
Having concluded that the sum-certain requirement is
analogous to other rules the Supreme Court has termed
nonjurisdictional, we address the government’s remaining
arguments as to why we should nonetheless consider the
requirement jurisdictional. We note at the outset that a
rule should be referred to as jurisdictional only if it “gov-
erns a court’s adjudicatory capacity.” Henderson, 562 U.S.
at 435. “Other rules, even if important and mandatory . . .
should not be given the jurisdictional brand.” Id.
The government argues that “[t]he CDA claim require-
ment falls on the jurisdictional side of the line because it
defines the class of cases the board is ‘competent to adjudi-
cate,’” noting in particular that the CDA is a statute waiv-
ing sovereign immunity, which must be strictly construed.
Appellee’s Suppl. Br. 5 (citing MOAC, 132 S. Ct. at 937).
Because the waiver of sovereign immunity is limited to
valid claims, the government argues, CDA jurisdiction
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requires a contracting officer’s decision on a valid CDA
claim. Id. at 5–6.
We agree that the CDA grants the boards and Court of
Federal Claims jurisdiction over claims. Section 7105(e)
defines the jurisdiction of the various boards of contract ap-
peals. 41 U.S.C. § 7105. 10 Relevant here, the statute pro-
vides: “The Armed Services Board has jurisdiction to decide
any appeal from a decision of a contracting officer . . . rela-
tive to a contract made by that department or agency.” Id.
§ 7105(e)(1)(a). That “decision of a contracting officer” is,
as the government argues, a decision on a claim. Appellee’s
Suppl. Br. 6 (citing 41 U.S.C. §§ 7103, 7104). But, as we
have explained, the crux of that grant of jurisdiction is the
claim—not the sum-certain requirement. In other words,
the Board has jurisdiction when a claim has been submit-
ted according to the procedures delineated in the CDA it-
self—for example, the requirement that the claim be a
demand in writing. 41 U.S.C. § 7103(a)(2). A claim that
complies with the statute’s requirements is a proper claim
for jurisdictional purposes, irrespective of additional regu-
latory requirements that Congress has not imbued with ju-
risdictional weight.
Here, the Board had jurisdiction over ECCI’s claim be-
cause ECCI submitted a written claim to the contracting
officer and appealed the deemed denial to the Board.
ECCI’s claim sought a sum of roughly $13 million. J.A. 1.
The sufficiency of a sum certain in a given case is a matter
for the Board to explore on the merits. While a deficient
sum certain may in some circumstances be a reason to re-
ject all or part of a claim, it does not mean the Board lacks
jurisdiction entirely. As the government recognizes, Con-
gress created the Board specifically to review CDA claims.
10 The Court of Federal Claims has jurisdiction over
CDA claims pursuant to 28 U.S.C. § 1491(a)(2) and 41
U.S.C. § 7104(b).
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22 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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41 U.S.C. § 7105(a)(1); Appellee’s Suppl. Br. 10. When a
claimant presents a statutorily valid CDA claim subject to
disagreement on the merits whether the claim comprises
one or multiple claims each requiring a sum certain, the
fact that the party “got it wrong” by organizing its sub-
claims in a manner different from how the Board would
sub-divide the claims does not mean that the Board lacks
authority to hear the case; it speaks instead to a factual
dispute on the merits. 11 See Gonzalez, 565 U.S. at 143
(“[T]he failure to obtain a [certificate of appealability
(‘COA’)] is jurisdictional, while a COA’s failure to indicate
an issue is not. A defective COA is not equivalent to the
lack of any COA.”); Placeway Constr. Corp. v. United
States, 920 F.2d 903, 907 (Fed. Cir. 1990) (describing a fac-
tual inquiry where “[t]o determine whether two or more
separate claims, or only a fragmented single claim, exists,
the court must assess whether or not the claims are based
on a common or related set of operative facts”).
Indeed, although the government concentrates on the
fact that a proper claim is required for jurisdiction to exist,
the sum-certain requirement is no less mandatory for its
being nonjurisdictional, as we have stressed throughout.
There is no incentive for a contractor or the government to
omit the sum certain knowing its claim could be dismissed
for failure to state a claim. See Fort Bend, 139 S. Ct. at
1851 (“[R]ecognizing that the charge-filing requirement is
nonjurisdictional gives plaintiffs scant incentive to skirt
the instruction. Defendants, after all, have good reason
11 Oral Arg. at 13:50–15:00, No. 22-1368, available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22
-1368_05052023.mp3 (discussing potential instances in
which the Board and a litigant may disagree on how
broader claims should best be divided into distinct claims,
each requiring a sum certain).
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promptly to raise an objection that may rid them of the law-
suit filed against them.”).
From a sovereign-immunity perspective, the analysis
is no different. Although waivers of sovereign immunity
are to be construed narrowly, the CDA clearly waives the
United States’ sovereign immunity with respect to a claim.
To consider the sum-certain requirement jurisdictional
could potentially narrow the government’s waiver by ex-
cluding some portion of claims with defective requests for
monetary relief. But we do not find that this narrowing
function justifies considering an otherwise nonjurisdic-
tional provision to be jurisdictional. 12
Lastly, the government argues that “[t]he CDA claim
requirement is analogous to other jurisdictional require-
ments in specialized tribunals,” pointing to the jurisdiction
of the Merit Systems Protection Board (“MSPB”) and Inter-
national Trade Commission (“ITC”). Appellee’s Suppl.
Br. 8–9 (citing Kloeckner v. Solis, 568 U.S. 41, 44 (2012)
and ClearCorrect, 810 F.3d at 1286). We are not convinced
that either of the government’s two examples—the “ques-
tion of whether a personnel action . . . qualifies as an ‘ad-
verse action’ or whether an import qualifies as an ‘article,’”
id.—are directly analogous to the facts here. 13
12 See Copen, 3 F.4th at 880–82 (finding the FTCA
sum-certain requirement nonjurisdictional despite the
FTCA’s waiver of sovereign immunity); see also M.R.
Pittman Grp., LLC v. United States, 68 F.4th 1275, 1280–
81 (Fed. Cir. 2023) (finding in the bid protest context that
the Blue & Gold waiver rule requiring offerors to object to
a patent error in a solicitation prior to its close is nonjuris-
dictional, even though 28 U.S.C. § 1491(b)(1) waives the
government’s sovereign immunity for bid protests).
13 For the statutory scheme at issue in Kloeckner, an
adverse action must be “particularly serious” for the
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24 ECC INTERNATIONAL CONSTRUCTORS, LLC v.
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* * *
For the foregoing reasons, including guidance from re-
cent Supreme Court precedent, the requirement to state a
sum certain in submitting a claim under the CDA is a non-
jurisdictional requirement.
III
We turn now to the implications of our holding that the
sum-certain requirement is nonjurisdictional.
Notably, as we have said, in the vast majority of cases
the distinction between whether the sum-certain require-
ment is jurisdictional or nonjurisdictional will be of little
consequence because the FAR mandates a sum certain for
claims seeking monetary relief. In many cases, the con-
tracting officer might promptly dispose of a claim that fails
to set forth a sum certain with sufficient specificity or re-
quire the contractor to modify the claim. Or the issue
might be addressed early in an appeal. Here, the distinc-
tion makes all the difference based on the government’s
late-filed motion to dismiss. In this case, the Board’s inter-
pretation of the sum-certain requirement as jurisdictional
affected employee to appeal the agency’s decision to the
MSPB. There, the statute defines what makes an adverse
action “particularly serious,” in contrast to the lack of a
statutory definition for a claim here. Kloeckner, 568 U.S.
at 44 (citing 5 U.S.C. §§ 1204, 7512, 7701); id. at 44 n.1
(“The actions entitling an employee to appeal a case to the
MSPB include ‘(1) a removal; (2) a suspension for more
than 14 days; (3) a reduction in grade; (4) a reduction in
pay; and (5) a furlough.’” (citing 5 U.S.C. § 7512)). In
ClearCorrect, the court defined “articles” using the term’s
ordinary meaning and concluded that “Congress’s unam-
biguously expressed intent was for ‘articles’ to mean ‘mate-
rial things.’” ClearCorrect, 810 F.3d at 1293–94.
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required it to dismiss ECCI’s claim after much time, effort,
and expense for both the litigating parties and the Board.
The same treatment is not required when the rule is
properly construed as nonjurisdictional. Unlike “chal-
lenges to subject-matter jurisdiction,” which the defendant
may raise at any point in the litigation and which courts
must consider sua sponte, “an objection based on a manda-
tory claim-processing rule may be forfeited” if the party
waits too long to invoke the rule. Fort Bend, 139 S. Ct. at
1849 (first quoting Gonzalez, 565 U.S. at 141; and then cit-
ing Eberhart v. United States, 546 U.S. 12, 15 (2005)); see
also Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714
(2019) (“Because [the requirement] is found in a procedural
rule, not a statute, it is properly classified as a nonjurisdic-
tional claim-processing rule. It therefore can be waived or
forfeited by an opposing party.” (cleaned up)). 14
The Supreme Court has not articulated in the nonju-
risdictional rule context precisely how long is “too long” for
a party to delay in raising objections before forfeiture
comes into play. In Arbaugh, discussed above, the defend-
ant challenged subject-matter jurisdiction two weeks after
a jury trial and the trial court’s entry of judgment. 546 U.S.
at 504, 508. The Court explained that “if the lower courts’
subject-matter jurisdiction characterization is incorrect,
and the issue, instead, concerns the merits of [the plain-
tiff’s] case, then [the defendant] raised the [relevant] re-
quirement too late.” Id. at 510. Similarly, in Kontrick v.
Ryan, the Court found forfeiture applicable where a party
waited to invoke a rule until after the court decided the
14 “The terms waiver and forfeiture—though often
used interchangeably by jurists and litigants—are not syn-
onymous. Forfeiture is the failure to make the timely as-
sertion of a right; waiver is the intentional relinquishment
or abandonment of a known right.” Hamer, 138 S. Ct. at
13 n.2 (cleaned up). We refer here to forfeiture.
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merits of the issue, having failed to raise the defense even
as “far into the litigation” as the summary judgment stage.
540 U.S. 443, 459 (2004). The Court explained that “a
debtor forfeits the right to rely on [Bankruptcy] Rule 4004
if the debtor does not raise the Rule’s time limitation before
the bankruptcy court reaches the merits of the creditor’s
objection to discharge.” Id. at 447. The Court further ex-
plained that “[e]ven if a defense based on Bankruptcy Rule
4004 could be equated to ‘failure to state a claim upon
which relief can be granted,’ the issue could be raised, at
the latest, ‘at the trial on the merits.’” Id. at 459 (quoting
Fed. R. Civ. P. 12(h)(2)).
The question here remains as to whether the govern-
ment waited too long to raise doubts about whether ECCI
stated a sum certain for each distinct claim. ECCI submit-
ted its claim to the contracting officer in February 2014. It
then appealed the deemed denial of its claim to the Board
in October 2014. The government did challenge a minor,
discrete portion of ECCI’s claim on jurisdictional grounds
in December 2016. But the government did not raise its
more general challenge to the sufficiency of ECCI’s sum
certain until six years after ECCI submitted its claim, wait-
ing until after settlement discussions, discovery, ADR with
a Board judge, summary judgment briefing, an appeal to
this court on a specific sub-issue, and a nine-day hearing
on the merits in June 2020. Indeed, the government waited
until the Board was poised to finally decide the case on the
merits to challenge jurisdiction. As ECCI notes, the gov-
ernment’s motion additionally came after the CDA’s six-
year statute of limitations had run, leaving ECCI with no
recourse to refile with the contracting officer a new claim
with a revised sum certain. 41 U.S.C. § 7103(a)(4)(A); Ap-
pellant’s Suppl. Br. 11. We remand for the Board to con-
sider these facts as well as any additional arguments by
the parties concerning the government’s potential
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forfeiture of its right to challenge whether ECCI’s claim
stated an appropriate sum certain. 15
To summarize, it is mandatory for a party submitting
a claim under the CDA seeking monetary relief to include
a sum certain indicating for each distinct claim the specific
amount sought as relief. A claim that does not state a sum
certain has not sufficiently pleaded the elements of a claim
under the CDA and may be denied by the contracting of-
ficer and dismissed on appeal to the boards or Court of Fed-
eral Claims for failure to state a claim. If a party
challenges a deficient sum certain after litigation has far
progressed, however, that defense may be deemed for-
feited.
CONCLUSION
For the foregoing reasons, the requirement to state a
sum certain in submitting a claim under the CDA is a man-
datory, nonjurisdictional requirement subject to forfeiture.
We reverse the Board’s dismissal of ECCI’s claim and re-
mand to the Board to evaluate whether the government
forfeited its right to challenge ECCI’s satisfaction of the
sum-certain requirement, and, if it did, to consider ECCI’s
case on the merits.
REVERSED AND REMANDED
15 ECCI has not forfeited its ability to argue that the
government forfeited a sum-certain challenge. See, e.g., In
re Micron Tech., Inc., 875 F.3d 1091, 1097 (Fed. Cir. 2017).
Because the sum-certain requirement was previously a
question of subject-matter jurisdiction that could be raised
at any stage of the litigation, ECCI had no reason to raise
a forfeiture defense. Our holding today that the sum-cer-
tain requirement is nonjurisdictional permits ECCI to ar-
gue the government forfeited its sum-certain challenge.
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COSTS
No costs.