Category: Stephanie M. Harden

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.

GAO Sharpens Its Pleading Standard Description: But Did GAO Raise the Bar?

David L. Bodner, Elizabeth N. Jochum, Stephanie M. Harden, and Luke W. Meier ●

In a recent decision, GAO announced that it was clarifying its pleading standard for bid protests. For many years, GAO had described a minimally acceptable protest pleading as one with “either allegations or evidence sufficient” to establish a likelihood of improper agency action. Going forward, as articulated in Warfighter Focused Logistics, Inc., B-423546, B-423546.2, Aug. 5, 2025, 2025 WL 2237333, the standard now calls for “credible allegations that are supported by evidence and are sufficient” to make that showing. GAO linked this revised formulation to a request from Congress in Section 885 of the 2025 National Defense Authorization Act to clarify and enhance its pleading standard. 

It is not immediately clear whether this means a change in protest practice at GAO. GAO seemed to suggest that the updated language was not a change to the pleading standard itself, but a clarification to better align the stated legal standard with its longstanding stance that “‘bare allegations’ or allegations based upon ‘information and belief’ are not sufficient to meet our pleading standards.” We will be closely watching how GAO applies the standard in its decisions to fully understand the level of evidence required to clear GAO’s pleading standard, and it is likely to remain a heavily fact-specific analysis. Regardless, protesters, as ever, should make sure they substantiate allegations with evidence and awardees should retain counsel to safeguard their interests through effective dismissal requests.

Continue reading “GAO Sharpens Its Pleading Standard Description: But Did GAO Raise the Bar?”

Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2025–2026 Term

We are pleased to announce that a record nine attorneys from Blank Rome’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2025–2026 term.

Visit our website to learn more about their roles and ABA’s Section of Public Contract Law.

The Bottom Line: Cost and Pricing Updates | Act of God or Compensable Delay?

Stephanie M. Harden ●

Welcome to The Bottom Line: Cost and Pricing Updates, a new series covering what contractors should know about recent cost and pricing disputes—without the long read!

For our inaugural post, we present:

Appeal of Gideon Contracting, LLC, ASBCA No. 63561 (May 12, 2025)

The Bottom Line: When the Government orders a suspension of work due to an “act of God,” it may still be on the hook for the resulting increased costs under the Suspension of Work clause if it proximately causes an unreasonable delay. Here, the Government proximately caused the delay at issue through its management of water drainage through a lake and dam, including through controlled releases of water, and the Armed Services Board of Contract Appeals (“ASBCA” or “the Board”) found a portion of the delay to be unreasonable.

Key points of interest:

  • Generally, “acts of God” entitle contractors to additional time, but not additional compensation. However, the distinguishing feature entitling Gideon to additional compensation here was that the Government controlled the release of floodwaters via a drainage management system. Thus, the flooding was not caused solely by rainfall, as the Government argued, but rather, by the Government’s release of floodwater.
  • Gideon was not entitled to damages for the entire suspension period, however, because the contract specified when and how water releases would occur. Therefore, Gideon was only entitled to compensation for portions of the suspension that were found to be “unreasonable” (or as described by the Board, inexplicable).

Contractors facing suspensions of work should carefully evaluate whether their contracts may entitle them to relief where at least a portion of such suspensions are “unreasonable.”

Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2024–2025 Term

Blank Rome LLP is pleased to announce that eight attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s Public Contract Law Section for the 2024–2025 term.

Visit our website to learn more about their roles and the Section of Public Contract Law.

Two Sides to Every Story: When Is Extrinsic Evidence Relevant to Interpreting the Scope of a Contractor Release?

Stephanie M. Harden and David L. Bodner ●

When is it appropriate to consider “extrinsic evidence” of the parties’ intent when interpreting a contractor’s release of claims? A new decision out of the Armed Services Board of Contract Appeals (“ASBCA”), Sonabend Company (ASBCA No. 63359), sheds new light on this important question, denying the government’s motion for summary judgment because the release language it relied on was ambiguous and thus raised an issue of fact.

Signing Releases—An Area Fraught with Risk

Releases are typically presented to the contractor as routine. Simply sign the modification and new work scope or new funding will be added to your contract! But when a contractor signs a modification, it might waive its ability to later pursue a cost claim, even for prior changes not impacted by the modification itself. Thus, it is important to identify modification language that may bar a future claim.

The government typically seeks to bar recovery based on at least one of two legal theories: (1) a release and (2) accord and satisfaction.

  • Release—a unilateral act by which one party disclaims a contract right or obligation.
  • Accord and Satisfaction—a bilateral agreement or an accord, where the parties agree to altered performance and the acceptance of such altered performance is satisfaction of the accord, which discharges the claim.

In practice, these theories may apply even though a modification does not announce itself as a release or an accord and satisfaction or a bar to a future claim.

Continue reading “Two Sides to Every Story: When Is Extrinsic Evidence Relevant to Interpreting the Scope of a Contractor Release?”

Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2023–2024 Term

Blank Rome LLP is pleased to announce that nine attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2023–2024 term, marking the highest number of ABA Public Contract Law Section leadership positions held by our attorneys in the firm’s history.

Visit our website to learn more about their roles and the Section of Public Contract Law.

3 Tips to Reduce False Claims Act Exposure in the Wake of United States ex rel. Schutte v. SuperValu, Inc.

Justin A. Chiarodo, Jennifer A. Short, Stephanie M. Harden, Samarth Barot, and Oliver E. Jury ●

2023 is shaping up to be a major year in False Claims Act (“FCA”) practice, with the Supreme Court weighing in on both FCA scienter (in SuperValu) and the reach of the government’s dismissal authority (in Polansky), and the government focusing its enforcement efforts around antitrust, cyber, and national security. We focus today on the United States ex rel. Schutte v. SuperValu, Inc. decision, in which the Supreme Court held that a contractor’s subjective belief about its compliance at the time it submitted claims for payment is relevant to whether it had the requisite scienter for FCA liability. Much has been written on this case, with most articles exploring esoteric concepts like “scienter,” “falsity,” and the “objectively reasonable person.” But assuming—as we do—that the decision will reduce the prospect of successful early dispositive motions, what practical steps can contractors take to reduce their False Claims Act exposure and avoid litigation in the first place? We offer three suggestions.

We begin with a basic refresher on the issue presented in SuperValu. A defendant is not liable under the False Claims Act unless it “knowingly” (including acting with “reckless disregard”) submits a false claim to the government. The “knowing” scienter element—particularly around reckless disregard—can be difficult to prove in the world of complex and often ambiguous laws and regulations that govern contractors’ compliance. The federal circuits had split on the issue of whether a defendant’s subjective interpretation at the time it submitted claims for payment to the government was relevant to determining FCA “knowledge” if the defendant could later show that the underlying rule was ambiguous and its conduct (regardless of its contemporaneous understanding or belief) was consistent with an objective, reasonable interpretation of the unsettled requirement. SuperValu resolved the debate by holding that whether a defendant knowingly violated the FCA—and satisfied the scienter element—must consider the defendant’s real-time “knowledge and subjective beliefs.” United States ex rel. Schutte v. SuperValu, Inc., 143 S. Ct. 1391 (2023).

Continue reading “3 Tips to Reduce False Claims Act Exposure in the Wake of United States ex rel. Schutte v. SuperValu, Inc.“

Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing

Stephanie M. Harden ●

The primary holding of the Federal Circuit’s May 2023 decision in CACI, Inc.-Federal v. United States (Case No. 2022-1488), is that “statutory standing” is no longer a jurisdictional issue. This means that when considering whether a protester is an “interested party” under the Tucker Act, the Court of Federal Claims (“COFC”) is not required to address statutory standing before the merits.

Although much has been written about this holding, our view is that there will be little or no impact on most bid protests stemming from this particular aspect of the decision, other than perhaps an uptick in denying protests on the merits without first addressing statutory standing.

We think the more interesting part of the decision is its reaffirmance of the Chenery doctrine, and specifically, the Federal Circuit’s direction about which issues must be remanded back to the agency, rather than decided by the COFC in the first instance. Although the Chenery doctrine is not new, the Federal Circuit has now made it clear that the doctrine greatly limits the COFC’s ability to order specific relief where an issue was not previously considered by the agency. On this issue, our takeaway is that CACI-Federal will actually lead to a reduction in the COFC weighing in on certain merits-based issues.

Confused about how Chenery relates to statutory standing? Read on for our analysis.

Continue reading “Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing”

Lifecycle of a Claim, Part IV: Contracting Officer’s Final Decision

Stephanie M. Harden and David L. Bodner ●


Welcome back to our “Lifecycle of a Claim” series. This series explores the Contract Disputes Act claims process, with practical guidance stemming from recent case law every step of the way. Click the subscribe button on this page to get timely updates right in your inbox!

This series walks through this infographic (click here or the image below to expand), which illustrates the lifecycle of a typical claim:

Our previous posts are available at the following hyperlinks: Part I, Part II, and Part III. This post focuses on Steps 6 through 8 of this process: reviewing the Contracting Officer’s Final Decision (“COFD”), accepting or the appealing the COFD, and resolving or litigating the matter.

We begin with these essential questions: What is a COFD? What can a contractor do if it does not like the COFD? And what is the timeline to appeal a COFD?

What Is a COFD?

A COFD is a Contracting Officer’s (“CO”) decision on the merits, which provides the reasons for the decision and notifies the contractor of its appeal rights. 41 U.S.C. § 7103(d)-(e). The FAR describes a COFD as a written decision that:

i. Describes the claim or dispute

ii. References pertinent contract terms

iii. States the factual areas of disagreement

iv. States the CO’s decision, with supporting rationale

v. includes notice of contractor’s appeal rights “substantially as follows:”

Continue reading “Lifecycle of a Claim, Part IV: Contracting Officer’s Final Decision”
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