ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Al Rafideen Company ) ASBCA No. 59156
)
Under Contract No. W91GDW-10-D-2000 )
APPEARANCE FOR THE APPELLANT: Mr. Ahmed Maithem Jassim
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Lyn P. Juarez, JA
Trial Attorney
OPINION BY JUDGE NEWSOM ON THE GOVERNMENT'S MOTION TO
DISMISS FOR LACK OF JURISDICTION
Appellant appeals from a contracting officer's final decision denying its
demand for payment. The government moves to dismiss this appeal for lack of
jurisdiction on the basis that appellant's demand was not a claim, because it was
neither signed nor certified as required by the Contract Disputes Act of 1978 (CDA),
41 U.S.C. §§ 7101-7109. Appellant did not submit an opposition to the government's
motion. For the reasons explained below, the Board grants the government's motion
and dismisses the appeal without prejudice for lack of jurisdiction.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
On 23 March 2010, the Joint Contracting Command-Iraq/Afghanistan awarded
Contract No. W91GDW-10-D-2000 to Al Rafideen Company for the procurement of
sand and related materials (R4, tab 1). The contract included Federal Acquisition
Regulation (FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS -
COMMERCIAL ITEMS (MAR 2009) (R4, tab 1at48), subparagraph d of which stated
that the contract was subject to the CDA and incorporated FAR 52.233-1, DISPUTES.
On 28 July 2011, the contracting officer (CO) issued delivery order (DO) 0013
under the contract for 12,617 cubic meters of sand for $214,489 (R4, tab 5). In
September 2011, the CO notified appellant that it had no further need for sand under
DO 0013, and subsequently issued two bilateral modifications reducing the delivery
order quantities and related funding such that the total funding remaining after the
second modification was $69,956.51 (R4, tabs 8, 11, 15). The government asserts that
it made final payment to appellant in that amount on 21 February 2012 (R4, tab 16;
gov't br. at 1).
On 23 September 2013, appellant contacted the CO seeking compensation for
expenditures allegedly incurred on the contract in 2011 (R4, tab 18). After several
exchanges, appellant submitted a document entitled "Claim, Explanation, Invoices"
dated 7 October 2013 (R4, tabs 33, 34). The document lacked a signature,
certification, or stated total amount (R4, tab 34 ). The CO was able to calculate the
amount demanded to be $146,000 and notified appellant that "[ s]ince the claim is for
over $100,000 it will have to be certified." She attached FAR provisions showing the
required certification language. (R4, tab 35)
In response, appellant initially told the CO to "decrease" the amount claimed to
$98,000, but she again asked for a certification and again provided appellant the
required certification language (R4, tabs 36, 37). Appellant resubmitted its "Claim,
Explanation, Invoices" document, now dated 10 October 2013. This version included
a demand for $117,604.64 and stated: "First of all: I certify that the claim is made in
good faith." No additional certifying language, nor a signature, were included. (R4,
tab 38)
On 20 December 2013, the CO issued a final decision denying appellant's
purported claim (R4, tab 58). The contractor found errors in that decision (R4,
tabs 59-60) and thus the CO issued a corrected final decision on 30 December 2013
(R4, tab 61). On 11February2014, appellant submitted this appeal to the Board.
By letter dated 20 August 2014, the Board sua sponte advised appellant that the
"purported claim" in the record "d[id] not appear to contain a signature executing the
certification," nor did it contain all elements required in a certification, referring
appellant to several Board precedents. The Board directed appellant to demonstrate
that it submitted a certified claim to the contracting officer and provide a copy of that
claim to the Board. Appellant responded on 27 August 2014 by stating that it had
already provided the certified claim to the contracting officer. By letter dated
2 September 2014, the Board again directed appellant to provide a copy of the claim
and certification. Appellant responded by email that same day asking for clarification
on the missing certification assertions. Appellant responded again on 3 September
2014 by asking for a "claim attachment." By letter dated 9 September 2015, the Board
directed the parties to provide their views on whether the Board has jurisdiction to
adjudicate this appeal. The Board then held a 19 September 2014 teleconference at
appellant's request in which it explained its order orally to both parties.
On 8 October 2014, the government filed a motion to dismiss for lack of
jurisdiction. Appellant filed no response. On 12 November 2014, after appellant's
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deadline for responding, the Board again ordered appellant to submit a response by
28 November 2014. Appellant filed no response.*
DECISION
For contractor claims exceeding $100,000, the CDA requires the contractor to
certify that:
(A) [T]he 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 Government is liable; and
(D) the certifier is authorized to certify the claim on
behalf of the contractor.
41 U.S.C. § 7103(b)(l). This requirement is repeated in FAR 33.207(c) and in the
disputes clause incorporated into appellant's contract.
When required, as it was here, a CDA certification is a prerequisite to this
Board's jurisdiction. New Iraq Ahd Co., ASBCA No. 58800, 14-1BCA,35,479
at 173,953; Special Operative Grp., LLC, ASBCA No. 57678, 11-2 BCA, 34,860
at 171,480. A defective certification does not deprive the Board of jurisdiction,
41 U.S.C. § 7103(b)(3); however, the complete absence of a certification where
required does deprive the Board of jurisdiction and dictates dismissal. CCIE & Co.,
ASBCA Nos. 58355, 59008, 14-1BCA,35,700 at 174,817; Baghdadi Swords Co.,
ASBCA No. 58539, 13 BCA, 35,395 at 173,665. The fact that a contracting officer
purported to issue a final decision does not remedy the absence of a certification and
has no legal bearing on the Board's jurisdiction. Abdul Ahad Khadim Constr. Co.,
ASBCA No. 59206, 14-1BCA,35,694 at 174,766; Baghdadi Swords, 13 BCA
, 35,395 at 173,665.
Among its other purposes, the CDA certification is intended to enable the
government "to hold a contractor personally liable for fraudulent claims." Hawaii
*Initially after receiving the Rule 4 file, the Board sought to verify that appellant's
representative had authority to represent appellant. It issued orders dated
11April2014, 6 May 2014, 28 May 2014, 16 July 2014, 8 August 2014 and
13 August 2014, each directing appellant's representative to demonstrate that
he met the criteria under Board Rule 26 (now Rule 15) to act as appellant's
authorized representative. Appellant did not supply the required information
until 16 August 2014.
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CyberSpace, ASBCA No. 54065, 04-1 BCA if 32,455 at 160,533 (citing Transamerica
Insurance Corp. v. United States, 973 F.2d 1572, 1580 (Fed. Cir. 1992)). In so doing,
the certification "push[es] contractors into being careful and reasonably precise in the
submission of claims," Tecom, Inc. v. United States, 732 F.2d 935, 937 (Fed. Cir.
1984), and thereby is intended "to discourage the submission of unwarranted
contractor claims and to encourage settlements." Paul E. Lehman, Inc. v. United
States, 673 F.2d 352, 354 (Ct. Cl. 1982).
As we explained in Hawaii CyberSpace, 04-1BCAif32,455 at 160,535, the
absence of a signature on a certification defeats these objectives and renders the
certification ineffective. Accordingly, our decisions have established that the
altogether lack of a signature on a certification is not a defect that can be cured such
that we can exercise jurisdiction. Tokyo Company, ASBCA No. 59059, 14-1 BCA
if 35,590; Sygnetics, Inc., ASBCA No. 56806, 10-2 BCA if 34,576 at 170,465. The
absence of a claim certification deprives this Board of jurisdiction. Tefirom Insaat
Enerji Sanayi ve Ticaret A.S., ASBCA No. 56667, 11-1 BCA if 34,628; Dick
Pacific/GHEMM, JV, ASBCA No. 55829, 08-2 BCA if 33,937 at 167,943.
Here, appellant's purported claim lacks a signed certification and thus the
Board lacks jurisdiction over this appeal.
Appellant, as the proponent of the Board's jurisdiction, bears the burden of
establishing jurisdiction by a preponderance of the evidence. Hanley Indus., Inc.,
ASBCA No. 58198, 14-1 BCA if 35,500 at 174,015. Appellant submitted no
opposition to the government's motion to dismiss and thus provided no basis for the
Board to deny the motion.
CONCLUSION
The government's motion to dismiss for lack of jurisdiction is granted. This
appeal is dismissed without prejudice.
Dated: 7 May 2015
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
~$--
Administrative Judge
~CKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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. 59156, Appeal of
Al Rafideen Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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