ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
 The United States Court of Appeals for the Federal Circuit has remanded this 
appeal to the Board to evaluate whether the government forfeited its right to challenge 
whether appellant, ECC International Constructors, LLC (ECCI), satisfied the 
mandatory but non-jurisdictional “sum-certain requirement” with respect to ECCI’s 
February 12, 2014 monetary claim to the contracting officer, and, if it did, to consider 
ECCI’s case on the merits.  ECC Int’l Constructors, LLC v. Sec’y of Army (ECCI), 
79 F.4th 1364, 1380 (Fed. Cir. 2023).  Familiarity with that opinion is presumed.  The 
Federal Circuit recited the facts to be considered: 
 
ECCI submitted 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 
Appeal of - )  
 )  
ECC International Constructors, LLC ) ASBCA No. 59586 
 )  
Under Contract No. W912ER-10-C-0054 )  
   
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq. 
Michael H. Payne, Esq.  
  Cohen Seglias Pallas Greenhall & 
    Furman PC 
  Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Martin Chu, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Baltimore 
 
Katherine M. Smith, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Middle East 
  Winchester, VA 

2 
 
sufficiency of ECCI’s sum certain until six years after 
ECCI submitted its claim, waiting until after settlement 
discussions, discovery, [alternative dispute resolution] 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 
government’s motion additionally came after the [Contract 
Disputes Act’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.  
 
ECCI, 79 F.4th at 1380 (emphasis in original).  Upon consideration of the facts recited 
above and the positions of the parties on remand, we conclude that, particularly 
because it waited until after the hearing on the merits to request dismissal on sum-
certain grounds, the government forfeited its right to challenge ECCI’s satisfaction of 
the sum-certain requirement.  See id. at 1379-80.  In so doing, we specifically reject 
the government’s attempt on remand to shoe-horn into the present discussion an 
exchange during the hearing in which the government did not present the sum-certain 
challenge that it presented only after the hearing.1  Accordingly, the government’s 
June 23, 2020 motion to dismiss for lack of jurisdiction is denied to the extent that it 
relies upon the sum-certain requirement.   
 
 T he government’s June 23, 2020 motion appears also to challenge our 
jurisdiction to entertain at least some of the claims in this appeal on the ground that 
those claims are new, in that they have not been presented to the contracting officer.2  
To the extent the motion does so, we defer consideration.  We also defer consideration 
of ECCI’s case on the merits. 
 
 Dated:  January 2, 2024   
 
 
 
 
 
 
 
 
(Signatures continued) 
 
1 Gov’t Oct. 27, 2023 filing at 3 ¶ 2. 
2 Mot. at 11-12. 
 
 
 
TIMOTHY P. MCILMAIL 
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 
 I concur 
 
 
 
 OWEN C. WILSON 
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. 59586,
 Appeal of ECC 
International Constructors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  January 2, 2024 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals