MOTION TO DISMISS FOR LACK 
OF JURISDICTION DENIED:  July 5, 2017
CBCA 5760
SFM CONSTRUCTORS, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Colin K. McCarthy of Lanak & Hanna, PC, Orange, CA, counsel for Appellant.
David G. Fagan, Office of General Counsel, Department of Veterans Affairs,
Portland, OR, counsel for Respondent.
Before Board Judges SOMERS, VERGILIO, and KULLBERG.
SOMERS, Board Judge.
This appeal involves a claim by appellant, SFM Constructors, Inc. (SFM), seeking an
equitable adjustment for extra work and cost overruns, which it asserts arose from the actions
of contract administrators with the Department of Veterans Affairs (VA).  SFM alleges that
it suffered damages due to the VA’s alleged failure to manage the sequencing of SFM’s
work.  The VA has filed a motion to dismiss for lack of subject matter jurisdiction.  For the
reasons set forth below, we deny the motion.  


CBCA 5760 2
Background
On December 30, 2013, the VA awarded SFM a construction contract at the VA Loma
Linda Healthcare System, Loma Linda, California, to SFM.  The VA issued a notice to
proceed on May 15, 2014.  
As a result of a dispute regarding the renovation and remodeling of certain public
restroom facilities at the VA facility, SFM alleges that it suffered damages.  On January 9,
2017, SFM submitted its certified claim to the VA contracting officer.  The certified claim
included a detailed thirty-nine page request for equitable adjustment for $467,859, and
sought the remaining contract balance of $18,711.  SFM’s president certified the claim.  The
letter transmitting the claim to the contracting officer, signed by SFM’s attorney, stated that
the claim “seeks payment of at least $486,570.00.”
The contracting officer received SFM’s request for a final decision on January 12,
2017.  The contracting officer advised SFM that, due to the complexity of the claim, the VA
anticipated issuing a decision no later than May 12, 2017.  
When SFM did not receive the contracting officer’s final decision by that date, it filed
a notice of appeal, received and docketed by the Board on June 1, 2017.  In the complaint
accompanying the notice of appeal, SFM asked for “compensation from the Department of
Veterans Affairs in the amount of at least $473,319.” 
Discussion
The VA has filed a motion to dismiss this appeal for lack of subject matter jurisdiction
on the ground that SFM’s claim does not state a “sum certain.”  The Contract Disputes Act
(CDA) grants a limited waiver of sovereign immunity by allowing the Federal Government
to be sued in its capacity as a contracting party.  As a waiver of sovereign immunity, this
grant must be strictly construed.  Systems Management & Research Technologies Corp. v.
Department of Energy, CBCA 4068, 15-1 BCA ¶ 35,976, at 175,787 (citing Cosmic
Construction Co. v. United States. 697 F.2d 1389, 1390 (Fed. Cir. 1982).  The CDA provides
that “each claim by a contractor against the Federal Government relating to a contract [shall
be in writing and] shall be submitted to the contracting officer for decision.”  41 U.S.C. §
7103(a)(1) (2012); Systems Management & Research Technologies Corp., 15-1 BCA at
175,787.  Since the Act does not define the term “claim,” the definition that is set forth in
Federal Acquisition Regulation (FAR) 2.201, 48 CFR 2.201 (2016), is relied upon by
tribunals.  ASP Denver, LLC v. General Services Administration, CBCA 2618, 12-1 BC
¶ 35,007, at 172,041 (citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995)
(en banc); Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1581-82 (Fed. Cir.

CBCA 5760 3
1992)).  The FAR defines a 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.”  48
CFR 2.101; see ARI University Heights, LP. v. General Services Administration, CBCA
4660, 15-1 BCA ¶ 36,085, at 176,186 (citing Construction Group LLC v. Department of
Homeland Security, CBCA 4459, 15-1 BCA ¶ 35,900, at 175,506).   
A contractor must “submit in writing to the contracting officer a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of the
claim” to make a monetary claim in a sum certain.   See Contract Cleaning Maintenance, Inc.
v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987).  A claim for monetary relief is not clear
and unequivocal when a contractor’s “qualifying language leaves the door open for the
request of more money on the same basis.”  See ARI University Heights, 15-1 BCA at
176,186 (quoting Precision Standard, Inc., ASBCA 55865, 11-1 BCA ¶ 34,669, at 170,788). 
In short, the sum certain requirement demands a fixed amount be stated in the claim.  ASP
Denver, 12-1 BCA at 172,041 (citing Red Gold, Inc. v. Department of Agriculture, CBCA
2259, 12-1 BCA ¶ 34,921 (2011)).  
The sum certain requirement is satisfied, or not, at the time the contractor submits its
claim to the contracting officer.  ARI University Heights, 15-1 BCA at 176,186 (citing
Morgan & Son Earthmoving, Inc., ASBCA 53524, 02-2 BCA ¶ 31,874, at 157,482).  Here,
the Government asserts that SFM’s monetary claim is not stated as a sum certain because the
dollar amount is preceded by the phrase “at least.”  As SFM points out, this language is found
in the SFM transmittal letter, not in the actual certified claim.  The transmittal letter, standing
alone, would not establish a claim pursuant to FAR section 52.233-1(c), as it does not seek,
as a matter of law, the payment of a sum certain, it is not certified, and it does not seek a final
decision from the contracting officer.  By contrast, the actual certified claim contains no
qualifying language.  The certified claim here fulfills the sum certain requirement where the
sum is “readily calculable by simple arithmetic” from a formula included in the claim.  See
McAllen Hospitals, LP, v. Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA
¶ 35,758 at 174,975 n.9 (citations omitted).  The formula here includes the claim for
$467,859, combined with an outstanding contract balance of $18,711, for a total claim of
$486,570.  
In support of its motion to dismiss, the VA asserts that the fact that SFM requested
a different monetary amount in its complaint ($473,319), which is less than the amount
sought in the certified claim, proves that the claim cannot be construed as a sum certain. 
SFM explains in response: 
The amount prayed for on the face of SFM’s complaint is less than the amount
prayed for in its certified claim due to a payment by the VA to SFM in the

CBCA 5760 4
interim period from the submission of SFM’s certified claim to the contracting
officer[] and its filing of the complaint with this Board.
In short, the amount claimed by SFM for damages as a result of the VA’s actions is
unchanged.  The variance in the total amount sought is caused by changes to the outstanding
contract balance.  The Government possesses all of the information necessary to calculate
the precise figure it owes SFM for the outstanding contract balance.  See Metric
Construction, Inc. v. United States, 1 Cl. Ct. 383, 391 (1983) (sum certain requirement met
with data which allows for reasonable determination of the recovery available at the time the
claim is presented and/or decided by the contracting officer).    
Decision
The VA’s motion to dismiss for lack of jurisdiction is DENIED.
___________________________
JERI KAYLENE SOMERS
Board Judge
We concur:
_______________________________ ______________________________
JOSEPH A. VERGILIO H. CHUCK KULLBERG
Board Judge Board Judge