ASBCA Denies Government Motion To Dismiss, Providing Key Guidance On Contractor Claim Standards Post-ECC International

In Appeal of Bahadir (a C&M case), the Armed Services Board of Contract Appeals denied the government’s motion to dismiss in its entirety, ruling in favor of the contractor on both key issues raised by the government. The case arises from a contract for construction work at Al Udeid Air Base in Qatar, under which Appellant alleged government-caused delay and filed certified prolongation claims using a “windows analysis” methodology. The government moved to dismiss, arguing that Appellant failed to state a sum certain for each of what the government characterized as 38 distinct claims, and separately that four claims had not been properly presented to the Contracting Officer. 

The Board rejected both of the government’s arguments, relying on the Federal Circuit’s 2023 decision in ECC International Constructors v. Secretary of the Army, 79 F.4th 1364 (Fed. Cir. 2023) to confirm that a disagreement over whether a claim comprises of one or multiple claims (each requiring a sum certain) is a factual dispute to be resolved on the merits, not a basis for dismissal. The Board held that because Appellant organized its claims by delay windows and a sum certain could be calculated for each window, the sum certain requirement was satisfied. While not the first post-ECC International decision to address these issues, this ruling provides one of the clearest and most direct ASBCA statements on the applicable standard for the now non-jurisdictional review of contractor claims under the Contract Disputes Act, and will serve as meaningful guidance for contractors navigating similar claims.