Ecc International Constructors, LLC v. Secretary of the Army

• Court: Court of Appeals for the Federal Circuit
• Decided: August 22, 2023
• Docket: 22-1368
• Status: Unpublished

Opinion

Case: 22-1368 Document: 47 Page: 1 Filed: 08/22/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ECC INTERNATIONAL CONSTRUCTORS, LLC, Appellant

v.

SECRETARY OF THE ARMY, Appellee ______________________

2022-1368 ______________________

Appeal from the Armed Services Board of Contract Ap- peals in No. 59643, 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. ______________________ Case: 22-1368 Document: 47 Page: 2 Filed: 08/22/2023

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”) partially dismissing its claim for lack of jurisdiction. ECC Int’l Constructors, LLC, ASBCA No. 59643, 21-1 BCA ¶ 37,967 (Nov. 10, 2021). We reverse and remand. The U.S. Army Corps of Engineers awarded ECCI a contract in 2010 to design and build a military compound in Afghanistan. On May 2, 2014, ECCI submitted a claim to the contracting officer under the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–7109, seeking $3,767,856.32 in relief for additional costs it allegedly incurred due to gov- ernment directives to perform extra work. After years of litigation and a hearing on the merits in June 2020, the government moved to dismiss nine out of 23 direct cost items identified in ECCI’s claim for lack of subject-matter jurisdiction, arguing that each of those nine cost items com- prises multiple sub-claims that require, but failed to state, their own sum certain. The Board granted the govern- ment’s motion to dismiss. Today we issued an opinion in a companion appeal, No. 21-2323, from the Board’s dismissal of a claim arising out of the same contract. Like here, the Board in that case dismissed ECCI’s claim for lack of subject-matter jurisdic- tion because ECCI failed to state a sum certain for each sub-claim. We reversed and remanded, holding that the sum-certain requirement for CDA claims is a mandatory but nonjurisdictional requirement subject to forfeiture. Our holding in the companion appeal compels the same result here. Accordingly, we reverse the Board’s partial dismissal for lack of subject-matter jurisdiction. We re- mand for the Board to evaluate whether the government Case: 22-1368 Document: 47 Page: 3 Filed: 08/22/2023

ECC INTERNATIONAL CONSTRUCTORS, LLC v. 3 SECRETARY OF THE ARMY

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 COSTS No costs.