ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE STINSON ON GOVERNMENT’S 
MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH 
RELIEF CAN BE GRANTED AND/OR MOTION TO STRIKE 
 
Pending before the Board are two motions filed by the government seeking 
dismissal of portions of the three consolidated appeals filed by appellant J.A.M. 
Construction Services, Inc. (JAM):  (1) an April 24, 2025, partial motion to dismiss in 
ASBCA No. 63378 for failure to state a claim upon which relief can be granted and/or 
a motion to strike, and (2) a January 26, 2026, motion to dismiss JAM’s recently-filed 
appeal, ASBCA No. 64439, also for failure to state a claim upon which relief can be 
granted.1  The government challenges the sufficiency of claims JAM submitted to the 
government pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, 
wherein JAM asserts government caused excusable delay as an excuse for challenging 
the government’s termination of its contract for default and assessing JAM liquidated 
damages.  The government asserts that the Board lacks authority to review JAM’s 
allegations of government-caused delay as an affirmative defense because JAM failed 
to comply with requirements of the CDA and the Federal Acquisition Regulation 
(FAR). 
 
 
1 Because this decision concerns two separately filed motions to dismiss, as well as 
corresponding responses by appellant, we include parenthetically the filing 
dates for those documents to distinguish between the various pleadings. 
Appeals of - )  
 )  
J.A.M. Construction Services, Inc. ) ASBCA Nos. 63378, 64226, 64439 
 )  
Under Contract No. N69450-16-D-0605, 
T.O. N69450-20-F-1531 
) 
) 
 
   
APPEARANCE FOR THE APPELLANT: David Charitat, Esq. 
    Widerman Malek, PL 
    Melbourne, Florida  
 
APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq. 
    Navy Chief Trial Attorney 
 Billy B. Ruhling, II, Esq. 
Elizabeth C. Tosh, Esq. 
    Trial Attorneys 

2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
Contract Award and Procedural Background 
 
1.  These appeals arise under a Design-Bid-Build, Firm-Fixed Price, Indefinite 
Delivery/Indefinite Quantity, Multiple Award Construction Contract No. N69450-16-
D-0605, between JAM and the Naval Facilities Command (NAVFAC) Southeast (R4, 
tab 1 at 1-2).  On March 6, 2020, NAVFAC Southeast issued JAM Task Order 
No. N69450-20-F-1531 (the “task order”) under the contract, in the amount of 
$2,087,844, for construction of an elevator lobby addition to Building 2945 at Naval 
Air Station Whiting Field located near Milton, Florida (R4, tab 2 at 45-49).2  The task 
order performance period was 275 calendar days (id. at 5). 
 
2.  On September 1, 2021, the government issued JAM a show cause notice 
(R4, tab 9), to which appellant’s former counsel, Edward Kinberg, responded, 
proposing a no-cost termination for convenience and allowing the Navy “to keep the 
approximately $50,000 in retainage it has been holding” (R4, tab 10 at 83, 87).  JAM’s 
response did not request a contracting officer’s (CO) final decision (COFD) (R4, 
tab 10).  On November 19, 2021, JAM sent a second letter in response to the Navy’s 
September 1, 2021, show cause notice, stating JAM’s position that “it may be 
unrealistic to continue this project as a whole, to meet the schedule or to perform in 
accordance with JAM’s estimated costs,” and offering to enter a bilateral modification 
“addressing the time and cost issues” or, alternatively, requesting that “the contract be 
terminated for convenience with a termination for convenience being the most 
appropriate option” (R4, tab 11 at 89-90).  Again, JAM’s response neither requested a 
COFD nor contained a CDA certification. 
 
3.  By letter dated January 12, 2022, the government responded to JAM’s 
September 9, 2021, and November 19, 2021, letters, stating that “no termination for 
convenience will be considered,” and that a “cure notice will be issued shortly” (R4, 
tab 13 at 96).  On January 14, 2022, the CO issued a cure notice, to which JAM 
responded on January 21, 2022 (R4, tabs 15 at 100, 16 at 101-02).  The government 
issued a second show cause notice on March 24, 2022, to which JAM responded on 
March 31, 2022 (R4, tabs 17, 18 at 106-08).  The government terminated the contract 
and the task order for default on May 24, 2022 (R4, tab 19 at 145). 
 
 
2 Documents in the supplemental Rule 4 file are stamped “GOV” followed by Bates 
numbers beginning with zeros.  We cite to these Bates numbers, omitting 
“GOV” and the initial unnecessary zeros. 

3 
 
ASBCA No. 63378 – Termination for Default 
 
4.  On August 10, 2022, JAM appealed the COFD dated May 24, 2022, which 
the Board docketed as ASBCA No. 63378.  On September 26, 2022, JAM filed its 
complaint, asserting that the government’s “hardline and unforgiving” review and 
processing of JAM’s submittals delayed its completion of the contract task order 
(compl. dtd. September 26, 2022, ¶¶ 116 – 125), and that the Government failed to 
account for excusable delays to the critical path of the project (id. at ¶¶ 124 – 134).  
JAM sought conversion of the default termination to one for the convenience of the 
government (id. at ¶¶ 43, 134). 
 
April 1, 2025, COFD - Liquidated Damages 
 
 5.  On February 28, 2025, the CO issued a demand for payment in the amount 
of $1,155,750 for liquidated damages calculated based upon the difference between 
the task order completion date of December 10, 2020, and the date of the CO’s letter 
demand - a total of 1,541 days multiplied by the daily liquidated damages rate of $750 
(R4, tab 28).  The demand letter stated that “[t]he Government retains the right to 
reissue this demand for payment as part of a final decision pursuant to FAR 32.605 
should payment not be made by the contractor within 30 days from the date of this 
letter” (id.).  On April 1, 2025, the CO issued a COFD assessing liquidated damages as 
set forth in the CO’s February 28, 2025, demand letter (R4, tab 29 at 24679). 
 
Government’s First Motion to Dismiss and/or Strike – ASBCA No. 63378 
 
6.  On April 24, 2025 - over two and half years after JAM filed the appeal and 
just less than four months before an August 4, 2025, hearing was scheduled to 
commence - the government filed a partial motion to dismiss for failure to state a 
claim and/or motion to strike in ASBCA No. 63378, challenging that portion of JAM’s 
appeal asserting government caused delay or excusable delay as an affirmative defense 
(gov’t mot. at 1, 8-9 (April 24, 2025)).  The government posited that JAM had not 
submitted to the CO a claim for government caused delay or excusable delay 
requesting a COFD (id. at 9). 
 
7.  On June 2, 2025, JAM filed its response in opposition to the government’s 
motion (app. resp. at 1 of 6 (June 2, 2025)). 3  After discussions with the parties, the 
Board issued an Order dated July 30, 2025, holding in abeyance a decision on the 
government’s April 24, 2025 motion, based upon appellant’s statement that it would 
 
3 The pages of JAM’s June 2, 2025, and March 6, 2026, responses to the government’s 
April 24, 2025, and January 26, 2026, motions to dismiss are unnumbered.  
Citations to that filing are to the page numbers as designated by PDF reader. 

4 
 
soon submit a claim to the CO for a COFD which, presumably, would satisfy the 
issues presented in the government’s motion. 
 
ASBCA No. 64226 – Liquidated Damages 
 
8.  On June 27, 2025, JAM appealed the April 1, 2025, COFD seeking 
liquidated damages, which the Board docketed as ASBCA No. 64226, and 
consolidated with ASBCA No. 63378. 
 
JAM Submission of “Formal Claim” Dated August 1, 2025 
 
9.  After much discussion between the parties and conference calls with the 
Board, appellant promised to submit to the CO additional claims and documents.  On 
August 1, 2025, JAM submitted to the CO what it termed a “Formal Claim” (R4, 
tab 30).  Included as an attachment was a letter to the CO dated December 7, 2020, 
requesting a time extension from December 10, 2020, to July 30, 2021, based upon an 
employee medical emergency, weather delays, and impact of COVID-19 (R4, tab 30 
at 27130-27131).  That submission, which contained no certification and set forth no 
sum certain, requested recission of the default termination, issuance of “a Termination 
for Convenience as to [the] Task Order,” and recission of the COFD assessing 
liquidated damages – all issues already before the Board in ASBCA Nos. 63378 and 
64226 (id. at 27120).  Following receipt of that document, government counsel 
apparently reached out to appellant’s counsel and advised that the August 1, 2025, 
submission was not certified (gov’t mot. at 3 (January 26, 2026)). 
 
Complaint in ASBCA No. 64226 – Liquidated Damages 
 
10.  On August 19, 2025, JAM filed its complaint in ASBCA No. 64226, again 
alleging delay attributable to the government as an affirmative defense to the 
assessment of liquidated damages (compl. dtd. August 19, 2025, ¶¶ 3, 8, 14, 63). 
 
JAM Resubmission of “Formal Claim” Dated August 19, 2025 
 
11.  According to the government, on August 19, 2025, appellant’s counsel 
emailed the government, stating that at the request of government counsel, JAM was 
“re-submitting the attached Claim with Certification by an official of JAM 
Construction.”  However, according to the government, no document purporting to be 
a claim was attached to the email.  (Gov’t mot. at 3 (January 26, 2026))
4  According to 
 
4 A copy of JAM’s August 19, 2025, submission to the government, titled “Formal 
Claim and Request for Contracting Officer’s Final Decision - Contract, # 
N69540-16-D-OO65, Task Order # N6945020F1531,” is attached as Exhibit 4 
to JAM’s subsequently filed March 6, 2026, complaint in ASBCA No. 64439.  

5 
 
the government, on September 15, 2025, appellant’s counsel submitted “a document 
purporting to be a ‘Formal Claim’ dated August 19, 2025,” which requested the same 
relief as the August 1, 2025, submission (SOF ¶9), and again contained no sum certain 
(gov’t mot. at 3-4 (January 26, 2026)). 
 
Submission of Additional Claim Documents 
 
12.  During a status conference on September 25, 2025, appellant’s counsel 
agreed to provide quantification of alleged compensable government delays and 
corresponding cost impacts (gov’t mot. at 4 (January 26, 2026)). 
 
13.  Upon reopening of the Federal Government following the October 1, 2025 
to November 12, 2025, shutdown, appellant’s counsel submitted to the government on 
November 18, 2025, a supplement to JAM’s August 2025 submission consisting of 30 
documents (gov’t mot. at 4 (January 26, 2026; see R4, tabs 32-61)).
5  The government 
states that it reviewed the submission “but could not identify anything constituting a 
sum certain, certification, or any actionable request for relief that was not already on 
appeal at the Board” (id.). 
 
Formal Claim Supplemental Information - November 24, 2025 
 
14.  After discussions with government counsel, on November 24, 2025, 
appellant’s counsel submitted a document, entitled “Supplemental Information 
Regarding Formal Claim and Request for Contracting Officer’s Final Decision – 
Contract, # N69540-16-D-OO65, Task Order# N6945020F1531, dated August 19, 
2025, and previously provided to CO” (R4, tab 31 at 27173; gov’t mot. at 4 (January 
26, 2026)).
6  The document states, in part: 
 
Since the underlying demand by JAM remains the same as 
in the original Certified Claim, this submission is 
supplemental and submitted for clarification and the 
original Certified Claim remains in place.  At this point in 
time, it is virtually impossible to assign accurate monetary 
values to many of the various delays detailed in this 
 
This document appears to be a copy of JAM’s August 1, 2026, “Formal Claim,” 
but with the addition of a CDA certification by JAM’s president, appearing on 
page four of the document.  (Compl. dtd. March 6, 2026 (ex. 4 at 4); R4, tab 30) 
5 According to the government, “[b]ecause no claim or document purporting to be a 
claim was attached, the Navy assumed the August 19 reference was intended to 
direct the Navy to the September 15, 2025 submission that had been dated 
August 19, 2025” (gov’t mot. at 4 (January 26, 2026)). 
6 The document has a stated date of “12 November 24, 2025” (R4, tab 31 at 27173). 

6 
 
memorandum and the attached documents.  Therefore, 
since the ASBCA has advised that JAM’s Certified Claim 
should include a monetary demand for each delay, this 
supplement will use two different methodologies to assign 
a per-day value to each delay detailed [below]. 
 
(R4, tab 31 at 27173) 
 
15.  JAM’s submission sets forth the following two, alternative delay 
calculations: 
 
Delay cost calculation methodology #1:  Since the entire 
period of performance for the subject Task Order was 275 
days and the entire contract price was $2,087,844, the per-
day cost of the contract was $7,592.16.  Assuming a (very 
conservative) profit margin for JAM of 10%, the per-day 
cost of excusable delays and/or delays caused [by] the US 
Navy can be estimated at $759 per day ($2,087,844 
divided by 275 times 10%). 
 
Delay cost calculation methodology #2:  JAM employed 
three full-time personnel during the period of performance 
and all periods relevant to the delays delineated below.  
Owner and CEO Jose Mantilla drew a salary from JAM of 
$240,000.  Project Manager John McDonald drew a salary 
of $67,000; and JAM employed an office assistant at a 
salary of $38,400.  Additionally, Mr. McDonald was not 
local to the job site and required housing and travel costs 
of $2,500 per month or $30,000 per year.  Finally, JAM 
rented equipment at $60 per month, or $720 per year.  
Therefore, the total yearly cost to JAM for the site (and 
this does not include contractor costs and several other 
costs) was $376,120.  The per-day costs to JAM using this 
method would be $1,030 per day ($376,120 divided by 
365). 
 
(Id. at 27173-74) (emphasis omitted) 
 
16.  The November 24, 2025 submission also sets forth numerous delay 
allegations and alternative cost estimates, including (1) an alleged 141 days of delays 
attributable to COVID-19 (January 16 to June 6, 2020) totaling at an estimated cost of 
between $107,019 (using methodology 1) and $145,230 (using methodology 2), (2) an 
alleged 323 days of delay (September 20, 2020 to August 9, 2021) and a 

7 
 
corresponding cost of between $245,157 and $332,690, attributable to the loss of a 
subcontractor caused by government delays, (3) an alleged 301 days of delay (July 27, 
2021, to May 24, 2022) and a corresponding cost of between $228,459 and $310,030, 
attributable to the loss of a key employee due to alleged government mishandling of 
the project, (4) an alleged 100 days of delay (December 21, 2020, to March 31, 2021) 
and a corresponding cost of between $75,000 and $103,000, attributable to the loss of 
a foundation subcontractor and government failure to understand the test piles issue, 
(5) an alleged 412 days of delay (April, 7, 2021, to May 24, 2022) and a corresponding 
cost of between $312,708 and $424,360, attributable to differing site conditions, (6) an 
alleged 97 days of delay (April 7 to July 13, 2020) and a corresponding cost of 
between $73,623 and $99,910, for various delays in processing submittals, (7) an 
alleged 369 days of delay (April 7, 2020, to April 12, 2021) and a corresponding cost 
of between $280,071 and $380,070, for government mishandling of JAM’s quality 
control plan, (8) an alleged 39 days of delay (June 4 to July 13, 2020) and 111 days of 
delay (June 12, to October 1, 2020) at an unspecified cost for government mishandling 
of pre-construction submittals, and (9) an alleged 735 days of delay (May 19, 2020, to 
May 24, 2022) and a corresponding cost of between $557,865 and $757,050 for 
government mishandling of concrete materials submittals.  JAM also alleges delays of 
an unstated number and unstated cost impact for extreme weather delays and loss of a 
key JAM employee due to illness.  (R4, tab 31 at 27174-81)
 7  The submission contains 
no CDA certification. 
 
CO Decision Dated January 12, 2026 
 
17.  On January 12, 2026, the CO issued a “decision” (which the CO did not 
assert was a CDA COFD) responding to JAM’s August 19, 2025, “Purported Claim,” 
and JAM’s November 24, 2025, “Supplemental information to Purported claim” (R4, 
tab 62).  In rejecting the “purported claim,” the CO summarized, stating “[t]he essence 
of the relief asked for in JAM’s recent submissions are merely a regurgitation of what 
is already on appeal at the Board,” and that JAM’s submissions fail to set forth “a clear 
and unequivocal statement,” providing adequate notice to the CO about “the basis and 
amount of [its] claim for time or costs of Government Delays” (id. at 28220).  The CO 
also took the opportunity to increase the demand for payment of liquidated damages to 
reflect the additional time from issuance of its previous liquidated damages COFD, to 
 
7 The government notes that the total number of days set forth in the various alleged 
delay categories results in a total of 2,479 days of delay (which equates to six 
years, and 288 days), yet the task order work commenced in March 2020 (less 
than six years ago) and was terminated for default in May 2022 (less than 4 
years ago) (gov’t mot. at 4 (January 26, 2026)), but this does not take into 
account the fact that many of the alleged delays are overlapping.  The fact that 
these delays overlap does not render them an improper basis upon which to find 
that JAM has identified in its claim to the CO alleged days of delay. 

8 
 
January 12, 2026, the date of the CO’s “decision” - in the total amount of $1,394,250 
(id. at 28221). 
 
ASBCA No. 64439 – Appeal of CO’s January 12, 2026, Decision 
 
18.  On January 21, 2026, JAM appealed the CO’s January 12, 2026, decision, 
which was docketed as ASBCA No. 64439, and requested consolidation with ASBCA 
Nos. 63378 and 64226, which the Board granted on January 28, 2026. 
 
Government’s Second Motion to Dismiss – ASBCA No. 64439 
 
19.  On January 26, 2026, the government filed its motion to dismiss ASBCA 
No. 64439, also for failure to state a claim upon which relief can be granted.  JAM 
submitted its response on March 6, 2026. 
 
Complaint in ASBCA No. 64439 
 
20.  On March 6, 2026, JAM filed its complaint in ASBCA No. 64439, which 
stated, in part: “[o]nly after cajoling from the Government did JAM, through counsel, 
attempt the virtually impossible task of quantifying monetary damages based upon 
delay and obstruction.  It has been the Government’s consistent attempts to shoehorn 
JAM’s requested relief into a monetary Claim that have frustrated the appellate 
process and forced JAM’s hand to re-shape its appeals.”  (Compl. dtd. March 6, 2026, 
¶ 16)  The complaint references JAM’s November 24, 2025 submission, as exhibit 5, 
which is attached to the complaint, but does not allege entitlement to the amounts set 
forth in the submission, stating instead that the supplemental information was an 
attempt “to quantify its Claim in monetary terms,” and that the “entire Claim, but 
especially this re-submission, was submitted for the sole purpose of placating the 
Government’s demands, obtaining a COFD on these issues, and establishing 
jurisdiction for the ASBCA” (id. at ¶ 4).  The complaint identified no sum certain and 
set forth no specific monetary damages (id.). 
 
DECISION 
 
I. Burden of Proof/Standard of Review 
 
JAM challenges the government’s default termination of its contract and task 
order, as well as the government’s assessment of liquidated damages, and requests that 
the Board convert the default termination to one for the convenience of the 
government (SOF ¶¶ 4-5, 8,10).  A termination for default is a government claim for 
which “[t]he government bears the burden of proof in establishing the validity of a 
default termination.”  Cascade Designs, Inc., ASBCA No. 62378, 22-1 BCA ¶ 38,068 
at 184,843 (quoting Johnson Mgmt. Grp. CFC, Inc. v. Martinez, 308 F.3d 1245, 1249 

9 
 
(Fed. Cir. 2002)).  Once “the  government satisfies its burden of establishing the 
validity of the default termination, the contractor has the burden of establishing that 
the default was excusable,” which the contractor can meet if it demonstrates that “the 
government materially breached the contract thereby discharging appellant's duty to 
perform,” or that its failure to perform was well beyond its “control and without its 
fault or negligence or that of its subcontractors or suppliers,” or that the CO's “default 
decision was arbitrary or capricious or an abuse of discretion.”  Id. (citations omitted). 
 
The government’s assessment of liquidated damages is likewise a government 
claim for which government “bears the initial burden of proving that the contractor 
failed to meet the contract completion date and that the period of time for which it 
assessed liquidated damages is correct.”  Sauer Inc., ASBCA, No. 62395, 21-1 BCA ¶ 
37,845 at 183,753 (quoting KEMRON Envtl. Servs. Corp., ASBCA No. 51536, 00-1 
BCA ¶ 30,664 at 151,399).  Once the government has met its burden, the appellant 
must demonstrate “either that the government incorrectly assessed the damages under 
the contract, or that appellant's failure to comply with the terms of the contract was 
excusable.”  Id. (quoting Chem-Care Co., ASBCA No. 53614, 06-2 BCA ¶ 33,427 
at 165,726). 
 
The government’s motions seek partial dismissal of JAM’s appeals for failure 
to state a claim upon which relief can be granted.  Specifically, the government 
challenges those portions of JAM’s appeals asserting government-caused delay as an 
affirmative defense, noting that JAM first raised the affirmative defense in its 
complaint filed in ASBCA No. 63378 (SOF ¶¶ 4, 6).  The government’s first motion to 
dismiss for failure to state a claim or to strike argued that because JAM failed to 
present to the CO a claim for a time extension, the Board lacked jurisdiction to 
consider that aspect of JAM’s appeal (gov’t mot. at 9 (April 24, 2025)).  After filing 
that motion, the parties held discussions aimed at resolving issues raised by the 
government’s motion and, accordingly, JAM submitted what it considered to be 
additional claims and supporting documentation to address the government’s concerns 
(SOF ¶¶ 9, 11-16).  The government’s second motion to dismiss for failure to state a 
claim asserted that the additional claims and supporting documentation submitted by 
JAM did not resolve the government’s concerns because, at bottom, they did not 
constitute submission to the government of a proper CDA claim (gov’t mot. at 3-4, 7-8 
(January 26, 2026)). 
 
The Board considers motions to dismiss for failure to state a claim even though 
our rules have no equivalent to Federal Rules of Civil Procedure (F
ED. R. CIV. P.) 
12(b)(6).  Parsons Gov't Servs., Inc., ASBCA No. 60663, 17-1 BCA ¶ 36,743 
at 179,101 (“[f]or purposes of assessing whether an appeal before us states a claim 
upon which relief can be granted, the primary document setting forth the claim is not 
the complaint, per se, but the contractor's claim submitted to the contracting officer”).  
“Our review encompasses the complaint, matters integral to the complaint, the case 

10 
 
record, and the contractor's claim submitted to the contracting officer.”  Samho Enter., 
ASBCA No. 63587, 25-1 BCA ¶ 38,891 at 189,304; CODA Dev. S.R.O. v. Goodyear 
Tire & Rubber Co., 916 F.3d 1350, 1360 (Fed. Cir. 2019) (in considering a FED. R. 
CIV. P. 12(b)(6) motion we “may consider judicially noticeable matters outside the 
pleadings without converting [the motion to] one for summary judgment); Dimare 
Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (considering in 
context of FED. R. CIV. P. 12(b)(6) a COFD attached to the complaint, an appendix 
attached to the government’s motion, and exhibits attached to contractor’s response). 
 
As the proponent of the Board's jurisdiction, JAM “bears the burden of 
establishing subject matter jurisdiction by a preponderance of the evidence.”  Northrop 
Grumman Corp., ASBCA No. 62165, 21-1 BCA ¶ 37,922 at 184,170 (citations 
omitted).  Pursuant to the CDA our jurisdiction requires both a valid claim and a 
COFD, or a deemed denial of the claim.  K-Con Bldg. Sys., Inc. v. United States, 778 
F.3d 1000, 1005 (Fed. Cir. 2015).  We will “dismiss a claim if the complaint does not 
allege facts plausibly suggesting entitlement to relief.”  Samho, 25-1 BCA ¶ 38,891 
at 189,304. 
 
II. FAR Definition of Claim 
 
JAM asserts government-caused delay as an excuse for its failure to timely 
perform the contract task order but unequivocally states in ASBCA No. 64439 that it is 
neither asserting a monetary claim, nor does it seek monetary relief for the 
government-caused delay (app. resp. at 1-2 of 11 (March 6, 2026)).  According to 
JAM, “[t]he allegations regarding excusable delay and Government obstruction are not 
a separate monetary Claims but are part and parcel of Appellant’s argument against the 
propriety of the Termination for Cause” and that “[e]ven if JAM’s assertions on this 
topic are considered a “Claim” under the statutory and regulatory definition, Appellant 
has always (prior to being driven to do so by the Government and the ASBCA) 
requested only non-monetary relief, namely the reversal of the Termination for Cause” 
(app. resp. at 6 of 11 (March 6, 2026)). 
 
Because the CDA does not define the term “claim,” we look to the FAR for a 
definition.  Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995).  
FAR 2.101 defines “claim” as “a written demand ... seeking, as a matter of right, the 
payment of money in a sum certain, the adjustment or interpretation of contract terms, 
or other relief arising under or relating to the contract.”  48 C.F.R. § 2.101.  Regardless 
of how JAM characterizes its action pending before the Board, a claim for money “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 CO and dismissed on appeal to [the Board] for 
failure to state a claim.”  ECC Int’l Constructors, LLC v. Sec’y of the Army, 79 F.4th 
1364, 1380 (Fed. Cir. 2023).  “While the sum certain monetary claim requirement is 
no longer jurisdictional, the Federal Circuit has clearly indicated it is mandatory for a 

11 
 
valid claim under the FAR,” and remains “necessary to give a CO adequate notice of 
the basis and amount of a claim.”  Lift Up Trucking, LLC, ASBCA No. 64346, 26-1 
BCA ¶ 38,988 at 189,823 (citing Contract Cleaning Maint., Inc. v. United States, 811 
F.2d 586, 592 (Fed. Cir. 1987)). 
 
According to JAM, “the Government has misapplied and misinterpreted federal 
statutes and the provisions of the FAR and attempted to shoehorn Appellant’s 
allegations into something that they are not and have never been - a monetary Claim 
for a sum certain” (app. resp. at 2 of 11 (March 6, 2026)).  JAM likewise argues 
“[t]here was never a monetary aspect to these assertions until the Government cajoled 
Appellant to fundamentally change the nature of its appeal and assert a separate Claim.  
JAM does not seek monetary remuneration.  No sum certain is demanded.”  (Id. at 6-7 
of 11)  Indeed, JAM asserts that the only reason it has included monetary damage type 
calculations in the claim(s) it submitted is to satisfy the government’s jurisdictional 
concern expressed in its motion to dismiss (id. at 5 of 11). 
 
III.  A Clear and Unequivocal Statement 
 
To satisfy the CDA’s presentment requirement, “[a] claim need not be 
submitted in any particular form or use any particular wording, but it must provide a 
clear and unequivocal statement that gives the CO adequate notice of the basis and 
amount of the claim.”  Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed. Cir. 
2021) (quoting K-Con Bldg., 778 F.3d at 1005); Contract Cleaning, 811 F.2d at 592.  
Although JAM states it is its intention “to prove that Government actions made 
performance on the project impossible and that the Termination for Cause was 
inappropriate” (app. resp. at 5 of 11 (March 6, 2026)), and has presented a litany of 
alleged government delays and possible damage amounts in its November 24, 2025, 
submission, JAM has failed to include a specific sum certain for those delays and 
CDA certification (SOF ¶¶ 14-16). 
 
Regarding JAM’s November 24, 2025, submission, the government properly 
notes that “when it comes to monetary quantification, the [November 24, 2025] 
Narrative contains two different calculations for a per diem cost but does not specify 
which one the Appellant expects to be used,” which “makes it impossible to calculate 
a cost for any compensable delay the CO might potentially identify,” and “[a]s such, 
the Narrative fails to provide either a total quantification of allegedly compensable 
delay days or any specific monetary claim” (gov’t mot. at 4-5 (January 26, 2026)).  As 
recognized recently by the Federal Circuit, a claim containing “varied calculations and 
open-ended amounts fall[s] short of ‘a clear and unequivocal statement that gives the 
CO adequate notice of the basis and amount of the claim.’”  HEALTHeSTATE, LLC v. 
United States, No. 2024-1336, 2026 WL 787163 at *5 (Fed. Cir. Mar. 20, 2026) 
(unpublished) (quoting Contract Cleaning, 811 F.2d at 592). 
 

12 
 
JAM’s complaint in ASBCA No. 64439 likewise does not allege entitlement to 
the amounts set forth in the submission dated November 24, 2025, stating instead that 
the supplemental information was an attempt “to quantify its Claim in monetary 
terms,” and that the “entire Claim, but especially this re-submission, was submitted for 
the sole purpose of placating the Government’s demands, obtaining a [COFD] on these 
issues, and establishing jurisdiction for the ASBCA” (SOF ¶ 20).  Indeed, JAM’s 
complaint identifies no sum certain, admitting instead that “quantifying monetary 
damages based upon delay and obstruction” is “virtually impossible” (id.).  What is 
certain here is that JAM has failed to present to the CO a proper, unequivocal claim in 
a sum certain, alleging delays attributable to the government and requesting a time 
extension for government actions that impacted JAM’s efforts to perform the contract 
task order.  ECC CENTCOM Constructors, LLC, ASBCA No. 60647, 18-1 BCA ¶ 
37,133 at 180,713 (“a contractor contesting ... a default termination due to excusable 
delay must submit a claim for a time extension before appealing to the Board”). 
 
IV.  Adjustment of Contract Terms 
 
As noted above, FAR 2.101 defines the term “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 adjustment or interpretation of contract terms, 
or other relief arising under or relating to the contract.”  Under this definition, a “sum 
certain” is required for claims that seek the payment of money, but is not required for 
nonmonetary claims, such as those seeking “the adjustment or interpretation of 
contract terms” or other contractual relief.  JAM argues that its non-monetary 
challenge to the default termination and request for a convenience termination 
qualifies under the FAR’s definition of claim because JAM seeks “other relief arising 
under or relating to this contract” (app. resp. at 2 of 11 (March 6, 2026)).  However, 
what JAM actually seeks here is “the adjustment . . . of contract terms” – i.e., an 
extension of time for alleged government delays.  48 C.F.R. § 2.101; M. Maropakis 
Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010); ECC 
CENTCOM, 18-1 BCA ¶ 37,133 at 180,713. 
 
The quandary presented in these appeals is that, typically, when a contractor 
asserts a claim for government caused delay, the contractor includes as part of that 
claim a request for money damages.  As discussed above, that is not the situation 
presented in these appeals – JAM expressly states it has no interest in recovering 
monetary damages for government caused delay.  The question here, then, is whether a 
contractor seeking to assert government delay as an affirmative defense to a 
termination for cause, need not first submit a sum certain delay claim to the CO for a 
decision, if at the Board the contractor professes to seek only conversion of the default 
termination to a convenience termination and no monetary relief. 
 

13 
 
Our decision in Skip Kirchdorfer, Inc., ASBCA No. 40515 et al., 93-3 BCA ¶ 
25,899, is instructive on this issue.  In that appeal (which did not concern the assertion 
of government caused delay as an affirmative defense to a termination for default) the 
contractor challenged two COFDs denying the contractor’s claims for time extensions 
due to government caused excusable delay, neither of which demanded payment of 
money nor included CDA certification.  As noted by the Board, the “contractor claims 
sought only time extensions under the respective contracts to which they related, with 
no mention of seeking the payment of any amount of money,” and, as such, “the scope 
of each appeal is properly limited to the contractor’s entitlement to all or part of the 
time extensions requested in its claims.”  Id. at 128,834.  The government moved to 
strike prayers for relief set forth in the complaint because the claims had not been 
quantified and subsequently sought dismissal for lack of jurisdiction because the 
claims had not been certified.  Id. at 128,833.  We found that, because the contractor’s 
time extension requests under each contract were in writing and were submitted to the 
CO for decision, they satisfied the prerequisites for a valid claim, holding that a claim 
for relief “arising under” the contract other than the payment of money is “expressly 
cognizable under the applicable disputes clause in each” of the contractor’s contracts.  
Id. at 128,835. 
 
As we noted more recently, when determining whether the Board has 
jurisdiction to consider a request for declaratory relief, “the jurisdictional question . . . 
is not whether the claim may have a significant monetary impact, but whether it may 
have a significant nonmonetary impact.”  J&J Maint., Inc., d/b/a J&J Worldwide 
Servs., ASBCA No. 63013, 23-1 BCA ¶ 38,353 at 186,257 (citing Securiforce In’l 
Am., LLC v. United States, 879 F.3d 1354, 1360 (Fed. Cir. 2018), overruled, in part, 
on other grounds, ECC Int'l Constructors, 79 F.4th at 1372-73). 
 
As explained by the Federal Circuit in Securiforce, “[w]hile contractors may in 
some circumstances properly seek only declaratory relief without stating a sum certain, 
they may not circumvent the general rule requiring a sum certain by reframing 
monetary claims as nonmonetary.”  879 F.3d at 1360.  Securiforce dealt with a 
contractor’s claim challenging the government’s termination of its contract for 
convenience, which the contractor submitted to the CO as a request for declaratory 
relief.  Id. at 1358-59.  Holding that the contractor’s failure to present to the CO a sum 
certain for its breach claim “rendered its claim insufficient,” the Federal Circuit 
explained that, if granted, the declaratory relief would “yield only one significant 
consequence: it would entitle Securiforce to recover money damages from the 
government.”  Id. at 1360-61.  That is not the situation presented here.  Assuming 
JAM is successful in establishing government caused delay as a defense to the 
government’s termination for cause, such a result would have a significant 
nonmonetary impact, i.e., overturning the termination of the contract for default.  J&J 
Maint., Inc, 23-1 BCA ¶ 38,353 at 186,257 (finding “significant consequences” other 
than the recovery of money such that claims not barred by the Federal Circuit decision 

14 
 
in Securiforce).  Accordingly, we conclude that appellant has failed to state a claim for 
government caused delay monetary damages, but we may consider JAM’s non-
monetary claim of alleged government caused delay, asserted as an excuse to its 
termination for cause – the claim that JAM unequivocally states it seeks to assert as an 
affirmative defense in these appeals. 
 
V.  CDA Certification 
 
We note that JAM also argues that its November 24, 2025, filing “did not 
require any additional certification as it was not a separate claim but a provision of 
supplemental information for the Contracting Officer’s consideration” (app. resp. at 3 
of 11 (March 6, 2026)).  JAM’s November 24, 2025, filing included a considerable 
amount of additional information that is not properly characterized as just an update to 
information already provided to the government (SOF ¶¶ 14-16); see, e.g., Tom Shaw, 
Inc., ASBCA No. 28596 et al., 95-1 BCA ¶ 27,457 at 136,774, aff'd on reconsid., 96-1 
BCA ¶ 28,007 (“appellant's claim revisions constituted an attempt at accuracy, with 
dollars claimed for specific items both increasing and decreasing.  At all times, the 
underlying claim allegations remained the same and the cost modifications did not 
constitute new claims requiring additional certification”). 
 
JAM readily admits that, when it submitted its certification as part of its 
August 19, 2025, submission, its “claim” was “non-monetary,” containing no 
discussion of alleged delay damages (app. resp. at 10 of 11 (March 6, 2026)) (“[n]o 
certification was required on that non-monetary Claim, but one was provided 
anyway”).  Even if JAM’s monetary government delay claim was somehow otherwise 
considered proper and in compliance with the CDA and the FAR, lack of certification 
would be yet one more reason why the Board would be unable to entertain the 
monetary portion of JAM’s delay claim.  Tefirom Insaat Enerji Sanayi ve Ticaret A.S., 
ASBCA No. 56667, 11-1 BCA ¶ 34,628 at 170,630 (while defect in certification can 
be cured during appeal, complete lack of certification deprives Board of jurisdiction). 
 

15 
 
CONCLUSION 
 
For these reasons, we deny the government’s motion in ASBCA 63378, to 
strike JAM’s assertion of alleged government-caused delay as an excuse or affirmative 
defense to the government’s default termination and the government’s assessment of 
liquidated damages in ASBCA No. 64226.  We grant the government’s motion to 
dismiss in ASBCA Nos. 63378 and 64439 for failure to state a claim upon which relief 
can be granted JAM’s monetary claim based upon alleged government caused delay. 
 
 Dated: June 2, 2026 
 
 
 
 
 
 
 
 
 
 
DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
J. REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL  
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 Nos. 63378, 64226, 64439, 
Appeals of J.A.M. Construction Services, Inc., rendered in conformance with the Board’s 
Charter. 
 
 Dated:  June 2, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals