ARMED SERVICES BOARD CF CONTRACT APPEALS

Appeal of --

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_ > ASBCA NO- 60841

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Under Contract No. W56KJD-l3-P~0079

APPEARANCE FOR THE APPELLANT:
CEO and President

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief` Trial Attomey
CPT William T. Wicks, JA
Trial Attomey

OPINION BY ADMINISTRATIVE JUDGE PROUTY

Sometime after the receipt of this appeal from appellant, we became concerned
that we might not possess jurisdiction to consider it because the claim upon which the
appeal is premised was not signed, thus calling into question its certification After
requesting, receiving, and considering briefing from the parties, we conclude that our
concerns were justified: this appeal is dismissed because the lack of an actual
signature upon the claim prevents the certification from being effective, and the
amount of money being sought in this appeal requires a certified claim.

F[NDINGS OF FACT

On 2 November 2012, appellant was awarded Contract No. W56KJD-l3-P-OO79,
a firm-fixed-price contract for 10,108,638.54 Af`ghani, or approximately $207,900, by
the General Support Contracting Center, Camp Phoenix, Afghanistan (Army) for the
delivery of gravel to FOB Warrior in Afghanistan (R4, tab l). AHer delivery, appellant
received payment by electronic fund transfer voucher dated 21 March 2013 (R4, tab 6).

In early 2016, appellant filed an appeal, docketed as ASBCA No. 60702,
seeking payment for gravel allegedly provided, but not paid for. In ASBCA
No. 60702, appellant informed us that it had not filed a claim with the contracting
officer (CO), but intended to do so. On l August 2016, we informed the parties that,
absent objection, we intended to dismiss the appeal within 14 days due to the lack of a
claim. On l7 August, not having received any objection, we dismissed the appeal
without prejudice to appellant’s submitting a claim to the CO.

By email dated 2 August 2016 (after being informed of the pending dismissal,
but before it became effective), appellant sent a document entitled “Certified Claim
Letter” to the CO at Arrny Contracting Command, Rock Island Arsenal - Closeout
Division, Ms. Celeste Hobert, seeking $231,000, for gravel purportedly requested by
the government after the original contract performance was completed, but never
memorialized by contract modification The correspondence included the following:

I Certifj) that the claim is made in good faith,' that the
supporting data are accurate and complete to the best of
my knowledge and belief,' that the amount requested
accurately reflects the adjustment for which the [sic] we
believe[] the Government is liable,l and that I am
authorized to certify the claim on the behalf of the our
company.

bellow [sic] are proof of the contract, invoice, extra work,
if you have questions please let me know, thank you very
much.

Sincerely,
[REDACTED][']

(R4, tab 8 at 53-54) No handwriting or electronic signature appears on the signature
block or anywhere else on this letter.

The CO denied appellant’s request by decision dated 3 October 20162 (R4, tab 9).
Appellant appealed the CO’s decision by correspondence dated 10 October 2016 to
the Board. The appeal was docketed 12 October 2016 as ASBCA No. 60841.
Appellant’s correspondence initiating this appeal included the CO’s final decision and
a document titled, “Appeal contracting officer decision & Certified Claim Letter for

 

l We have redacted the entire signature block from our published opinion because
appellant asked us to minimize the use of its name and contact information for
reasons of personal security. This is why we refer to appellant as “appellant”
throughout, rather than by name, as we would otherwise prefer. The redacted
signature block included the name of the CEO of the company, the company
name, its address and other contact information

2 The decision was reissued 3 November 2016 due to a typographical error
misidentifying appellant’s name in the earlier decision (R4, tab 10).

ASBCA No. 60702.”3 There is no handwriting or electronic signature on this document,
and it is identical in every way to the “Certified Claim Letter,” except for its title and two
other portions of the document in which it corrects the CO’s misstatement of the
contractor’s name,

After we reviewed the Rule 4 file submitted by the government, which included
the apparently-unsigned certified claim, we issued an order on 21 November 2016,
directing the government to provide a signed version of the certified claim,

The next day, 22 November 2016, appellant (without prompting) emailed the
Board a short note with five attachments. One, titled “Certified Claim Letter,” is
identical to the claim document described above, including the fact that it is unsigned.
Appellant also included a copy of the document entitled, “Appeal contracting officer
decision & Certified Claim Letter for ASBCA No. 60702,” which was identical to the
like-titled document attached to its appeal to the Board, including the fact that it was
unsigned. But the attachments to the email included a pdf file entitled, “signed
Certified Claim and contracting officer final decision.” The first document in this
attachment bears a handwritten title, “Certified Claim,” and includes, at the bottom of
the page, a signature by appellant’s representative above his printed name, The second
document in this attachment is titled, “Appeal contracting officer decision & Certified
Claim Letter for ASBCA No. 60702.” This is a copy of appellant’s notice of appeal in
this appeal, received by the Board 11 October 2016. However, the copy in appellant’s
22 November 2016 email attachment includes a signature above appellant’s
representative’s printed name that was not present on the notice of appeal received by
the Board 11 October 2016,

The government’s 5 December 2016 response to the Board’s 21 November
2016 order stated that the government did not possess any signed copy of the claim to
the C().

From these facts, we conclude that the signatures upon the documents in the
“signed Certified Claim and contracting officer final decision” attachment to
appellant’s 22 November 2016 email were added after the claim’s denial was appealed
to the Board, perhaps in an effort to allay our jurisdictional concerns. This conclusion
does not mean that we believe appellant necessarily intended to mislead or deceive us
(if it did, its submission, on 22 November 2016, of a signed copy of the appeal
document that it had originally submitted to us without a signature would have plainly
sabotaged that effort), for we can imagine an innocent explanation for the addition of
the signatures, but the lack of signatures on the original claim has significant
consequences

 

3 ASBCA No. 60702, the reader may recall, is appellant’s earlier appeal which was
dismissed without prejudice on 17 August 2016.

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DISCUSSION

This matter is relatively straightforward: as is demonstrated below, we do not
possess jurisdiction to consider the appeal of a claim in the amount of more than
$100,000, such as the one presented here, if the claim isn’t properly certified. And
proper certification requires a signature, which is missing here. Thus, the appeal must
be dismissed.

The Contract Disputes Act, 41 U.S.C. §§ 7101-7109, (CDA), requires the
certification of contractor claims “of more than $100,000.” 41 U.S.C. § 7103(b). This
certification is required to be “executed by an individual authorized to bind the
contractor with respect to the claim” and must state that:

(A) the claim is made in good faith;

(B) the supporting data are accurate and complete
to the best of the contractor’s knowledge and
belief;

(C) the amount requested accurately reflects the
contract adjustment for which the contractor
believes the Federal Govemment is liable; and

(D) the certifier is authorized to certify the claim on
behalf of the contractor.

41 U.S.C. § 7103(b).

“It is well settled that certification is a jurisdictional prerequisite for this Board for
contractor claims over $100,000.” Special Operative Group, LLC, ASBCA No. 57678,
l 1-2 BCA 11 34,860 at 171,480 (citations omitted). Although a defective certification
does not deprive the Board of jurisdiction, 41 U.S.C § 7103(b)(3), the failure to certify at
all does deprive the Board of j urisdiction and mandates dismissal. Special Operative
Group, 11-2 BCA 11 34,680 at 171,480; CCIE & Co., ASBCA Nos. 58355, 59008,
14-1 BCA 11 35,700 at 174,816; Baghdadi Swords Co., ASBCA No. 58539, 13 BCA
11 35,395 at 173,665.

And, as far as the law is concerned, an unsigned certification is considered to be
not merely defective, but not certified at all. This is because the “execution” of a CDA
certification requires a “certifier to sign the claim certification,” Teknocraft Inc.,
ASBCA No. 55438, 08-1 BCA 11 33,846 at 167,504 (citing Hawaii CyberSpace,
ASBCA No. 54065, 04-1 BCA 11 32,455 at 160,535), thus making the failure to sign
the certification language into the equivalent of “failure to certify,” which may not be
remedied. Hawaii CyberSpace, 04-1 BCA 11 32,455 at 160,535; see also Tokyo
Company, ASBCA No. 59059, 14-1 BCA 11 35,_590 at 174,392.

The typed signature block that appellant utilized to “sign” his claim is not a
signature for purposes of the CDA’s certification requirement The CDA does not
define “signature,” but that term is defined in the Federal Acquisition Regulation
(FAR) as “the discrete, verifiable symbol of an individual which, when affixed to a
writing with the knowledge and consent of the individual, indicates a present intention
to authenticate the writing. This includes electronic systems.” FAR 2.101. Applying
this definition, we have previously held that a typed but unsigned name is not
sufficiently discrete or verifiable to satisfy the CDA requirement that the certification
be Signed. Tokyo Company, 14-1 BCA 11 35,590 at 174,392;

_, ASBCA No. 60444, 16-1 BCA 1136,558 at 178,049.

Here, we are presented with the same sort of unsigned, typed signature block

that we rejected in Tokyo Company and _. The result is the same: we
conclude that appellant’s claim is not certified and must be dismissed. Appellant’s
argument, that it submitted a signed claim on 22 November 2016 in response to
our order to the Army, does not change the result. As discussed above, an
uncertified claim may not be remedied by amendment after the submission of the
appeal. Suodor AI-Khair Co - SAKC O for General Trading, ASBCA Nos. 59036,
59037, 15-1 BCA 11 35,964 at 175,726.

MQSIM

We recognize that this second dismissal of its appeal will almost certainly be
frustrating to appellant. Neverthe|ess, the certification requirement exists for good
reason and we are not free to deviate from its dictates.

This appeal is dismissed without prejudice to appellant’s submission of a
properly certified claim to the CO.

Dated: 3 April 2017

J. iu~:lD PROUTY
Administrative Judge
Armed Services Board

of Contract Appeals
(Signatures continued)

I concur I concur

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MAR‘K“N. erLEi{ / RICHARD sHAcKLEFoRD
Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Arrned Services Board Arrned Services Board

of Contract Appeals of Contract Appeals

l certify that the foregoing is a true copy of the Opinion and Decision of the
Arrned Services Board of Contract Appeals in ASBCA No. 60841, Appeal of-

_, rendered in conformance with the Board’s Charter.

Dated:

 

JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals

