Category: Shane M. Hannon

The Bottom Line: Cost and Pricing Updates | Sum Certain

Stephanie M. Harden and Shane M. Hannon ●

Appeal of Samho Enterprise, ASBCA No. 63587 (Aug. 13, 2025)

The Bottom Line: The Contract Disputes Act (“CDA”) requires that if a contractor submits a claim for payment to the Government, the claim must include a “sum certain”—with the emphasis on “certain.” Here, the contractor submitted a claim for damages after the Government declined to exercise the contract’s first option year. The contractor submitted a claim for “no less than” $326,276. The claim’s qualifying language—“no less than”—meant the claim did not state a sum certain. The Armed Services Board of Contract Appeals (the “Board”) therefore dismissed the contractor’s appeal.

Key points of interest:

  • A sum certain is a mandatory element of a CDA claim. If a contractor’s claim fails to state a sum certain, the contracting officer may deny the claim on that basis, and the Board may dismiss any subsequent appeals for failing to state a claim.
  • Using qualifying language to describe the requested amount does not constitute a sum certain. If a claim characterizes its requested amount with qualifying language, like “approximately,” “to be determined,” or “in excess of,” the claim does not state a sum certain under the CDA.
  • Pursuant to the Federal Circuit’s 2023 decision in ECC International Constructors, the “sum certain” requirement is not a jurisdictional requirement. Accordingly, the Board dismissed the appeal without prejudice.
  • The contractor’s appeal also asked the Board to order the agency to exercise the contract’s option year. The Board reiterated it does not have jurisdiction over requests for specific performance.

Contractors submitting claims for monetary relief must include a “sum certain,” not a “sum approximate.” Failure to state a sum certain is fatal to a claim.

Trump Administration Increases Oversight of Federal Grants

Dominique L. Casimir and Shane M. Hannon ●

President Trump issued an Executive Order (“EO”) on August 7 that overhauls the federal grantmaking process. Titled “Improving Oversight of Federal Grantmaking,” the EO identifies deficiencies in the federal government’s current approach to issuing discretionary grants. The EO criticizes some existing federal grants as an “offensive waste of tax dollars” and promoting “anti-American ideologies,” and contends grants have been issued to “organizations that actively work against American interests abroad.” It also identifies defects in the grant approval process, noting that drafting grant applications is “notoriously complex” and therefore too costly for smaller institutions. The EO seeks to align federal grants with the Administration’s policy preferences and give the Administration greater control to select grant recipients. Here are the relevant highlights and takeaways:

The EO expands the federal government’s ability to terminate grants.

A core feature of the EO is requiring all discretionary grants, current and future, to include termination for convenience clauses. Discretionary grants are those where an agency exercises its own judgment to select both the funding amount and the grantee, such as by basing award on the merits of grant applications via a competitive process. Historically, discretionary grants have not included termination for convenience clauses. For example, the Uniform Guidance, 2 C.F.R. § 200, does not include a provision that permits the federal government to terminate a discretionary grant at its leisure. This is in contrast to typical federal contracts, which invariably include termination for convenience provisions, such as FAR 52.249-2.

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Fiscal Year 2024 GAO Protest Statistics: Course Correction from Fiscal Year 2023 Shows Continued Slow Decline in GAO Protests

Luke W. Meier and Shane M. Hannon ●

The Government Accountability Office (“GAO”) released its Annual Report to Congress for Fiscal Year 2024 (B-158766), summarizing bid protest activity during the 2024 fiscal year. The FY24 bid protest statistics reflect a continuation of recent trends, and course correction after the FY23 statistics were skewed by the 100+ protests challenging the Department of Health and Human Services’ government-wide acquisition contract, the Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”).

Overall, the number of protests is fairly steady, the effectiveness rate remains high (over 50 percent), and hearings are increasingly rare (just one in the last year).

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Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims

Shane M. Hannon and Scott Arnold ●

The Federal Circuit last Friday issued a decision that is, as the dissent put it, “a very important government contract case.” In Percipient.ai v. United States, the Federal Circuit adopted a narrow construction of the FASA task order bar, which prohibits the Court of Federal Claims (“COFC”) from hearing a protest challenging the issuance of a task order. At the same time, the Federal Circuit held that under certain circumstances—such as in this case—potential subcontractors can challenge an agency’s violation of procurement law at the COFC.

The Federal Circuit effectively kicked down the drawbridge to the COFC. It increased the variety of cases the COFC can hear and the classes of government contractors—particularly subcontractors—that can bring those cases. Percipient.ai will have significant ramifications on the government contracting community.

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DOD Finalizes Rule Concerning Domestic Content Preference

Samarth Barot and Shane M. Hannon ●

On February 15, the Department of Defense (“DOD”) finalized a rule amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to supplement the Federal Acquisition Regulation (“FAR”) implementation of Executive Order 14005, addressing domestic preferences in DOD procurement. Defense contractors should be aware of the specific changes and ensure their sourcing and supply chain systems incorporate the updated requirements.

Background

As we discussed in prior posts, in January 2021 President Biden issued an executive order strengthening the Buy American Act’s (“BAA”) preference for domestic products and services in federal procurements. The executive order directed the FAR Council to consider proposing a rule to increase the BAA’s domestic content threshold for domestic end products.

The FAR Council then issued a final rule that increased the domestic content threshold for domestic end products (covered here). Previously, a product was considered a domestic end product if the cost of its components mined, produced, or manufactured in the United States exceeded 55 percent of the cost of all components. The FAR Council’s final rule increased that domestic content threshold to 60 percent and implemented a phased increase to 65 percent in 2024 and 75 percent in 2029. However, the rule also included a fallback threshold of 55 percent if (1) no end products exist that meet the new domestic content threshold or (2) such end products do exist but are unreasonably expensive. This fallback threshold will persist until 2030.

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