Ecc International Constructors, LLC v. Secretary of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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ECC INTERNATIONAL CONSTRUCTORS, LLC,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
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2022-1368
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Appeal from the Armed Services Board of Contract Ap-
peals in No. 59643, Administrative Judge Owen C. Wilson,
Administrative Judge Richard Shackleford, Administra-
tive Judge Timothy Paul McIlmail.
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Decided: August 22, 2023
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ROY D ALE HOLMES , Cohen Seglias Pallas Greenhall &
Furman, Philadelphia, PA, argued for appellant. Also rep-
resented by MICHAEL H. P AYNE.
CORINNE ANNE N IOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for appellee. Also represented by BRIAN
M. BOYNTON, P ATRICIA M. MCCARTHY .
______________________
Case: 22-1368 Document: 47 Page: 1 Filed: 08/22/2023

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ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
2
Before P ROST , L INN, and CUNNINGHAM , Circuit Judges.
P ROST , Circuit Judge.
ECC International Constructors, LLC (“ECCI”) ap-
peals a decision of the Armed Services Board of Contract
Appeals (“Board”) partially dismissing its claim for lack of
jurisdiction. ECC Int’l Constructors, LLC, ASBCA No.
59643, 21-1 BCA ¶ 37,967 (Nov. 10, 2021). We reverse and
remand.
The U.S. Army Corps of Engineers awarded ECCI a
contract in 2010 to design and build a military compound
in Afghanistan. On May 2, 2014, ECCI submitted a claim
to the contracting officer under the Contract Disputes Act
(“CDA”), 41 U.S.C. §§ 7101–7109, seeking $3,767,856.32 in
relief for additional costs it allegedly incurred due to gov-
ernment directives to perform extra work. After years of
litigation and a hearing on the merits in June 2020, the
government moved to dismiss nine out of 23 direct cost
items identified in ECCI’s claim for lack of subject-matter
jurisdiction, arguing that each of those nine cost items com-
prises multiple sub-claims that require, but failed to state,
their own sum certain. The Board granted the govern-
ment’s motion to dismiss.
Today we issued an opinion in a companion appeal,
No. 21-2323, from the Board’s dismissal of a claim arising
out of the same contract. Like here, the Board in that case
dismissed ECCI’s claim for lack of subject-matter jurisdic-
tion because ECCI failed to state a sum certain for each
sub-claim. We reversed and remanded, holding that the
sum-certain requirement for CDA claims is a mandatory
but nonjurisdictional requirement subject to forfeiture.
Our holding in the companion appeal compels the same
result here. Accordingly, we reverse the Board’s partial
dismissal for lack of subject-matter jurisdiction. We re-
mand for the Board to evaluate whether the government
Case: 22-1368 Document: 47 Page: 2 Filed: 08/22/2023

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ECC INTERNATIONAL CONSTRUCTORS, LLC v.
SECRETARY OF THE ARMY
3
forfeited its right to challenge ECCI’s satisfaction of the
sum-certain requirement, and, if it did, to consider ECCI’s
case on the merits.
REVERSED AND REMANDED
COSTS
No costs.
Case: 22-1368 Document: 47 Page: 3 Filed: 08/22/2023

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