M.J. Hughes Construction, Inc.
Docket: ASBCA 56581, ASBCA 58038
Decision date: 2019-01-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
M.J. Hughes Construction, Inc. 
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ASBCA No. 61782 
Under Contract No. W9128F-14-C-0072 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
Philip E. Beck, Esq. 
Jonathan R. Mayo, Esq. 
Parker A. Lewton, Esq. 
Smith Currie & Hancock LLP 
Atlanta, GA 
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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(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.* 
*Tobe sure, nothing prevented MJH from explicitly presenting this calculation with 
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 
(Signatures continued) 
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Administrative Judge 
Armed Services Board 
of Contract Appeals 

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I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
f REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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: 
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JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals