               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
NileCo General Contracting LLC                 )      ASBCA No. 60912
                                               )
Under Contract No. W912ER-12-C-0005            )

APPEARANCE FOR THE APPELLANT:                         Cynthia Malyszek, Esq.
                                                       Malyszek & Malyszek
                                                       Westlake Village, CA

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Rebecca L. Bockmann, Esq.
                                                      Pietro 0. Mistretta, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Middle East
                                                       Winchester, VA

         OPINION BY ADMINISTRATIVE JUDGE MCNULTY ON THE
      GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

      . NileCo General Contracting LLC (NileCo or appellant) submitted a document
entitled "claim" to the contracting officer (CO) in the amount of $2,079,137.25 via
email. The claim 1 included certification language mandated by the Contract Disputes
Act, 41 U.S.C. §§ 7101-7109 (CDA), but no electronic or digital signature, only the
typewritten name of the company's director. NileCo has appealed from a deemed
denial. The government moves to dismiss for lack of jurisdiction due to the lack of
signature following the certification language and because NileCo' s submission to the
CO purportedly did not request a final decision. We grant the government's motion
with respect to the signature issue and dismiss the appeal, without prejudice.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. Contract No. W912ER-12-C-0005 (the contract) was awarded to appellant
on 19 December 2011, by the United States Army Corps of Engineers (USACE).
Anwar Ahmed, Director, signed the contract, with a handwritten signature, on behalf
of appellant. The contract, in the amount of$4,537,871.00, was for construction

1
    We refer to this submission as NileCo's "claim" throughout this opinion, but the use
        of that term does not mean that we determine the document to constitute a valid
        claim as that term is used in the CDA.
services for a dining facility and other structures at the Transit Center at Manas, Manas
International Airport, Kyrgyzstan. (R4, tab 7 at 3, 188)

        2. The government issued a Suspension of Work notice dated 28 January 2014,
directing appellant to stop work, demobilize and quit the site by 31 January 2014 (R4,
tab 67). The document was digitally signed by the CO (id. at 1).

      3. In an email dated 27 July 2016 appellant submitted its claim to the CO seeking
compensation for withheld payments. The claim included the following certification
language:

             I certify 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 contract adjustment for which the
             contractor believes the Government is liable; and that I am
             duly authorized to certify the claim on behalf of the
             contractor.

The claim's email transmittal included only a typewritten name in the signature block,
i.e., "Anwar Ahmed Director." (R4, tab 2) The claim itself included nothing further with
respect to identifying who was certifying the claim on behalf of appellant. Appellant's
transmittal also stated:

             Please find attached our claim for the withheld payments
             plus costs incurred and interest. It has been two and a half
             years since work stoppage and we have yet to receive our
             funds. Please review the claim and let us know when we
             will get paid.

(Id. at 1)

      4. In a letter apparently emailed to NileCo under the date of 23 September 2016,
the CO acknowledged having received the claim via email, advised additional time was
needed to prepare his final decision and stated: "The final decision will be issued by
November 20, 2016." The document was digitally signed by the CO. (R4, tab 83)

       5. Via email sent on 4 November 2016, including an attached letter also dated
4 November 2016, the government terminated the contract for convenience (R4, tab 87).
The email referenced NileCo' s "claim" and invited the submission of additional
information for the termination settlement proposal (id. at 1). This termination letter
also was digitally signed by the CO (id. at 3).



                                           2
       6. By email dated 5 December 2016, appellant filed its notice of appeal (NOA)
with the Board. The NOA indicated that it was a deemed denial appeal based on the
CO's failure to have rendered his decision by 20 November 2016 as he had stated. 2

       7. The government filed its motion to dismiss, asserting lack of jurisdiction by
email received 23 December 2016. Appellant filed its response, after retaining
counsel, on 21 March 2017. The government filed a reply on 17 April 2017.

       8. The motion included four exhibits. Exhibit No. 1 comprised the claim and
several email chains, which establish the parties were in near constant contact by email
regarding appellant's desire to close out the contract and receive the funds it believed it
was entitled to from shortly after the suspension of work in January 2014 until shortly
before appellant submitted its claim in July 2016. In the last email, dated 3 May 2016,
from appellant to the CO before appellant submitted its claim, appellant stated:

                We are frustrated now with your written promises, in your
                last email on 22 April you wrote us that you will send u
                smode next week almost 2 weeks are again passed, you
                took this matter in July 2015 and in our conference call
                you promised to finish the mater in one month and now
                almost 10 months passed and its been 27 months our
                retention money is stuck with you[.]

                Kindly by tomorrow evening let us know if you want to
                finish this matter amicably if now so that we can proceed
                with legal ways along with your all written commitments.
                [Syntax, punctuation and spelling in original]

(Gov't mot., ex. 1 at 5)

                                        DECISION

       The government argues we lack jurisdiction to consider the appeal. The
government asserts appellant's 27 July 2017 email does not constitute a valid claim
under the CDA because appellant failed to request a final CO's decision or because
appellant failed to provide the required certification (gov't mot. at 2).



2
    The record includes a CO's decision denying the claim, dated 7 December 2016
         (gov't mot., ex. 4 ), the same claim that the government now alleges did not
         demand a CO's decision.

                                             3
The Lack of Certification Issue

         The government concedes appellant has included the certification language
required by the CDA and Federal Acquisition Regulation (FAR) 33.207, but argues the
failure to have signed the certification is an incurable defect making the certification in
effect a nullity, the claim invalid and therefore depriving us of jurisdiction (gov't mot.
at 3-4 ). Appellant argues the parties in their course of dealing recognized appellant's
typewritten signature block as binding on appellant and therefore the typewritten name
in the signature block in the claim transmittal should suffice as appellant's signature.
Appellant asserts the government also operated in this fashion. (App. resp. at 4-5)
Alternatively, appellant argues the certification is merely defective and that we must
permit its correction (id. at 7).

        A claim for more than $100,000 such as this one must be certified in
accordance with the CDA. The CDA requires that the certification state ( 1) the claim
is made in good faith; (2) the supporting data are accurate and complete to the best of
the contractor's knowledge and belief; (3) the amount requested accurately reflects the
contract adjustment for which the contractor believes the government is liable; and
(4) the certifier is authorized to certify the claim on behalf of the contractor. 41 U.S.C.
§ 7103(b). These requirements are repeated in FAR 33.207(c) and the contract's
Disputes clause. (R4, tab 7 at 41) Here, there is no dispute the claim includes
language satisfying these elements of the certification requirement. There is a problem
however because there is no signature. With respect to the CDA certification
requirement, the FAR states: "The certification may be executed by any person duly
authorized to bind the contractor with respect to the claim." FAR 33.207(e). We have
previously held that to "execute" a CDA certification, there must be a signature by a
certifier. Tokyo Company, ASBCA No. 59059, 14-1 BCA ~ 35,590.

        Here we have no signature, no discrete, verifiable symbol that can be
authenticated, only a typewritten signature block, similar to the circumstances in the
Tokyo Company appeal. See also Emerald Town Construction Group, ASBCA
No. 60841, 2017 ASBCA Lexis 129; ABS Development Corp., ASBCA No. 60022
et al., 16-1 BCA ~ 36,564; Teknocraft Inc., ASBCA No. 55438, 08-1 BCA ~ 33,846.
"Signature or signed" is defined in FAR 2.101 to mean "the discrete, verifiable symbol
of an individual which, when affixed to a writing with the knowledge and consent of
the individual, indicates a present intent to authenticate the writing." A signature need
not be handwritten only, but can include electronic symbols associated with electronic
or digital signatures. Here we have nothing corresponding to a signature as required,
and only have the typewritten signature block that we found insufficient in Tokyo
Company, Emerald Town, ABS and other appeals.

      Appellant alleges the parties' practice was that each accepted the other's
typewritten name as an "email signature" (app. resp. at 5-7). The parties' course of


                                            4
dealing does not appear to have been as appellant contends. The record indicates that
the CO regularly used a digital signature to sign documents transmitted by email and
did not rely solely on his typewritten name for his "email signature" as appellant
asserts. (SOF ~~ 2, 4, 5) Appellant may have proceeded in this fashion, but there is no
evidence this was a mutual practice. Nor is there evidence in the record that the CO
accepted this practice for any document that would require a signature. In any event,
the parties cannot override the jurisdictional requirement of an executed certification
through a course of dealing, i.e., their agreement. It is axiomatic that parties cannot
confer jurisdiction by agreement. Teledyne Continental Motors, Gen. Prods. Div. v.
United States, 906 F.2d 1579, 1582 (Fed. Cir. 1990); see also James M Ellett Constr.
Co. v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996). Therefore, even if true, the
parties' practice of accepting a typewritten name as a signature would be of no
consequence with respect to the requirement that the certification be signed as defined
in the FAR and case law. Accordingly, we find appellant's argument unpersuasive.

       Alternatively, appellant argues the absence of a signature is a correctable
defect. A lack of signature is not a defect in the certification that can be corrected,
Teknocraft, 08-1 BCA ~ 33,846 at 167,505. For all of the foregoing reasons, we
determine we have no jurisdiction to consider this appeal.

The Failure to Have Requested a Final Decision Issue

        The government also asserts we lack jurisdiction because appellant failed to
expressly request a final decision. Having found we lack jurisdiction based upon
appellant's failure to have signed the certification we need not, and ordinarily would
not, reach this issue. We address this argument only in the interest of efficiency, to
forestall its likely reassertion and the necessity of having to revisit this argument
should appellant properly certify its claim in the same form otherwise and return to the
Board with a new appeal.

       The Federal Circuit has noted that a contractor's cost submission was not a
proper CDA claim because the contractor had not requested a final decision. Bill
Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541, 1550 (Fed. Cir. 1995), overruled
in part on other grounds by Rejlectone, Inc. v. Dalton, 60 F .3d 1572 (Fed. Cir. 1995).
The court has also ruled that the request for a final decision need not be express, but
can be implicit from the circumstances. In this regard the court has stated:

              This does not require an explicit request for a final
              decision; "as long as what the contractor desires by its
              submissions is a final decision, that prong of the CDA
              claim test is met." Transamerica, 973 F.2d at 1576.
              Thus, "a request for a final decision can be implied from



                                             5
              the context of the submission." Heyl & Patterson, 986
              F.2d at 483.

Ellett Constr., 93 F .3d at 1543.

        The record includes evidence establishing that the parties discussed appellant's
demand for compensation for almost two years before appellant expressed frustration
with the delay it was experiencing with respect to receiving payment and submitted its
claim (SOF ,, 3, 8). We find, in the totality of the circumstances, that appellant has
sufficiently expressed the desire for a final decision to satisfy the requirement that it
request a final decision. Furthermore, the CO clearly recognized appellant had
requested a final decision, since he promised to issue one in response to receiving the
claim. (SOF, 4)

                                    CONCLUSION

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

       Dated: 22 September 2017




                                                   CHRiTOPHER M. ~TY
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals


 I concur                                          I concur




RICHARD SHACKLEFORD                                J. REID PROUTY
Administrative Judge                               Administrative Judge
Acting Chairman                                    Vice Chairman
Armed Services Board                               Armed Services Board
of Contract Appeals                                of Contract Appeals




                                            6
      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60912, Appeal ofNileCo
General Contracting LLC, rendered in conformance with the Board's Charter.

      Dated:



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




                                          7
