dissenting.
I respectfully dissent. This case seems to raise, and is mechanically controlled by, the interpretation of the Contract Disputes Act (CDA) certification requirement as jurisdic*1565tional, espoused in this court’s opinion in United States v. Grumman Aerospace Corp., 927 F.2d 575 (Fed.Cir.), cert. denied, — U.S. -, 112 S.Ct. 380, 116 L.Ed.2d 270 (1991). I believe this view should be revisited in light of the growing amount of criticism leveled at it and the successful legislative and regulatory efforts to circumvent it. Although in banc consideration was sought and denied in Grumman, with a dissent being published from the decision to not consider it in banc, circumstances have changed dramatically as a result of Grumman’s many adverse effects on government contracting practice.
I speak of Grumman as a convenient reference, and to other cases before and after it, relied on by the majority, which raise the central question of this dissent that certification should not be a jurisdictional question, as there held. The present case is a convenient one to disavow the now eongressionally rejected earlier errors in judgment, repeated by the majority here, i.e., that proper certification is a jurisdictional requirement. I wish to imply no criticism of certification itself for I think Admiral Rickover’s suggestion for it was splendid as a .guard against false or fraudulent claims. Interpretation by the regulation implementing the statute, and board and judicial decisions, however, go beyond the admiral’s recommendation - as adopted and understood by Congress,, as it has now been made clear by legislation in 1992, later discussed. Personal aspersions are not intended to be cast against those who see the requirement of proper certification differently from Admiral Rickover and the Congress. But, the latter’s views, I submit, are entitled to more respect than we have afforded them. It is intended here to make a record in this court that some of us do recognize the unfortunate consequences of the position taken by the court and that, in light of evidence now, there are viable grounds to reconsider what has been done. Failure to recognize the problem earlier has caused Congress to do it for us in future cases, shown hereinafter. That is the ultimate embarrassment to the court. I call it an “end run” around adherence to discredited and flawed precedent. The bell has rung and the court should listen, look, and learn from its errors.
In a March 4, 1991 decision, the ASBCA granted the Navy’s motion to dismiss the present case, ruling that Newport’s claim had not been properly certified under 41 U.S.C. § 605(c)(1) and 48 C.F.R. [FAR] § 33.-207(c)(2) because it had been certified by Newport’s controller, Mr. Burling, who, in light of this court’s decision in Grumman, was not a proper certifying official. I accept the majority’s statement of the essential background facts.
This court’s decision in Grumman has unleashed a wave' of protests and efforts to circumvent the rule it enunciated. This opinion includes a summary, of the typical reactions by the bench, the bar, and the administrative community in opposition to Grumman and the efforts to vitiate its stultifying effects on Federal Government procurement.
The broad general purposes of the CDA were to provide:
a fair, balanced, and comprehensive statutory system of legal and administrative remedies in resolving Government contract claims. The act’s provisions help to induce resolution of more contract disputes by negotiation prior to litigation; equalize bargaining power of the parties when a dispute exists; ... and insure fair and equitable treatment to contractors and Government agencies.
Senate Comm, on Governmental Affairs & .Comm, on the Judiciary, S.Rep. No. 1118, 95th Cong., 2d Sess. 1 (1978), reprinted in 1978 U.S.C.C.A.N. 5235.
The certification requirement of the CDA (section 605(c)(1)) was added through an amendment offered by Senator Robert C. Byrd (124 Cong.Rec. S18640 (1978)). The Senator’s statement was that the certification requirement was intended to address concerns expressed by Admiral Hyman G. Rickover. Admiral Rickover had testified during hearings that the Act should include and require,
as a matter of law that prior to evaluation of any claim, the contractor must submit to the Government a certificate signed by a senior responsible contractor official, *1566which states that the claim and its supporting data are current, complete and accurate.
Contract Disputes Act of 1978: Joint Hearings on S. 2292, S. 2787, and S. 3178, Before the Subcommittee on Federal Spending Practices and Open Government, 95th Cong., 2d Sess. 21 (1978) (emphasis added). Congress codified Admiral Rickover’s suggestion in the CDA at 41 U.S.C. § 605(c)(1) which states, in pertinent part:
For claims of more than $50,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.
The regulation which purports to implement the statute’s policy, FAR § 33.207(c)(2) states, in pertinent part:
If the contractor is not an individual, the certification shall be executed by—
(i) A senior company official in charge at the contractor’s plant or location involved; or
(ii) An officer or general partner of the contractor having overall responsibility for the conduct of the contractor’s affairs.
This court' in Grumman held that the treasurer of Grumman Aerospace Corporation, Mr. Paladino, who was also a senior vice president of finance of Grumman’s Aircraft Systems Division, was not a proper person to certify Grumman’s claim for reimbursement of disallowed employee compensation costs on 43 reimbursement contracts. The panel (Markey, C.J., Miller and Michel, JJ.) dismissed Grumman’s claim for lack of subject matter jurisdiction, ruling that Mr. Paladino was neither “in charge” of the plant where the contract was performed, nor did he have “overall responsibility” for the contractor’s affairs. Further, the court perpetuated the idea that the certification requirement should be considered as a jurisdictional prerequisite “that must be satisfied by the contractor before it may appeal the contracting officer’s claim denial.” Grumman, 927 F.2d at 579. The panel found that the regulation is entirely consistent with, section 605 of the CDA, that it “fills in the gap left by Congress.”
Judges Plager, Rader, Newman, and Lour-ie dissented from the court’s decision not to take Grumman in banc, arguing that the purpose of the certification requirement, as evidenced in the legislative history, is to prevent fraudulent claims and encourage settlements, and contemplates that the certifier must be an official able to speak for and bind the company regarding the claim. The dissent further maintained that the regulation goes beyond a reasonable interpretation of “contractor” by narrowing the range of officials able to certify. . Additionally, the dissent recognized that the government’s position “sets a trap for the unwary,” requiring claims to be recertified and thereby giving the government more time to avoid paying its debt as well as denying the contractor interest on the money due.
Grumman petitioned for certiorari and received support from five amici, among them the Federal Circuit Bar Association. The Supreme Court denied certiorari on October 15, 1991. — U.S. -, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991).
In one example of forced adaptation in the wake of the Grumman decision, the ASBCA has found it necessary to implement a program by which all pending appeals of claims for more than $50,000 are reviewed specifically and separately for certification validity.1 *1567In another recent example of the fatuity propagated by the Grumman regulation, the ASBCA held that because the regulation requires that the certification be accomplished by “a senior company official in charge at the contractor’s plant or location involved,” a vice president of the contractor cargo shipping company could not certify the claim for reimbursement of certain port charges because he was hot physically present on the high seas where the contract activity was considered to have been performed. The board held that the corporate office of the shipping company was not the location of the primary contract activity, but that the actual work took place on the high seas rather than in any specific port, thus requiring the vice president to have been in charge on the transport ship to have validly certified the claim. Appeal of American Transport Line, Ltd., ASBCA 39984, 92-2 BC ¶ 24,811, 1992 WL 34021. Under Grumman there may be no appropriate senior company official to certify a claim!
These examples of extra substantive work and unreasonable interpretation as a result of Grumman in and of themselves are illustrative of how the certification requirement, as currently interpreted by this court, has become a Frankenstein, originally intended to be a procedural afterthought added to the CDA on the suggestion of Admiral Rickover and now grown into a substantive monstrosity, draining resources and time, allowing government agencies to abuse contractors and clearly growing beyond its intended scope.
In its petition for certiorari, Grumman stated that the Federal Circuit’s decision in Grumman “is not only unprecedented, it is also inconsistent with the language of the regulation and conflicts with the statute which the regulation purports to implement,” and that the decision “condones and resurrects the very wrong that Congress legislated against when it passed the CDA — manipulation of the jurisdiction of the contract dispute forum by the agencies opposing contractor claims.”
The Federal Circuit Bar Association (FCBA) and the other four amici to Grumman’s certiorari petition (Aerospace Industries Association of America, Chamber of Commerce of the United States, the National Security Industrial Association, and the Shipbuilders Council of America) unanimously expressed the view that this court’s decision in Grumman frustrates the purposes of the CDA. The Federal Circuit Bar Association pointed out in its brief that validity of certification has been litigated in approximately 100 cases before this court, the Claims Court2 and the Court of Claims and that the administrative tribunals are much more bogged down with these eases. In June 1991 alone the ASBCA published nine decisions addressing' this issue. This waste of resources, according to the Association, accomplishes nothing but delaying the fair consideration of the- contractors’ claims, a result contrary to the fundamental purpose of the CDA which is to provide fair and expeditious resolution of government disputes. The FCBA also stressed that the jurisdiction of the Claims Court and agency boards is not dependent upon the certification of the claim, stating that “[t]he sole jurisdictional prerequisite for an appeal under the CDA is a final decision of a contracting officer.”
The Chamber of Commerce called upon the Supreme Court to “restore the fair and efficient system Congress intended to create,” stating that “[tjwelve years of mindless litigation is enough.” The Chamber of Commerce also headed up a proposal on the part of the defense industry (and the other amici on the certiorari petition) to amend the FAR to state that it would allow certifications to be executed by a person authorized to bind the contractor with respect to the claim.
The National Security Industrial Association (NSIA) argued that in examining the *1568provisions which Congress set out, delineating the subject matter jurisdiction of the boards in section 607(d) of the CDA and establishing the Claims Court’s jurisdiction to hear appeals from contracting officer decisions under the Tucker Act, 28 U.S.G. § 1491, “[t]here is absolutely no language in ... these statutory provisions to indicate that the ■ CDA’s claim certification requirement was intended to limit the statutorily established authority of agency boards of contract appeals or the Claims Court to review final contracting officer decisions under the CDA.” The NSIA aptly points out that although this court’s panel in Grumman termed it “well-settled” that the CDA’s certification requirement is jurisdictional, the cases that have considered the issue simply cite to earlier decisions with little or no analysis of their own. As an example, the NSIA cites the Lehman case which, although typically cited as one of the dispositive cases on this issue, Lehman never discusses the issue of jurisdiction, and its reasoning more soundly suggests “that a contractor’s failure to submit a properly certified claim presents a board of contract appeals or the Claims Court with a claim upon which relief cannot be granted.” Both the NSIA and the FCBA observe that this court’s decision in Grumman effectively allows the. Office of Federal Procurement Policy (OFPP) to establish the jurisdictional boundaries of the Claims Court, which is clearly inappropriate.
The Shipbuilders Council states that the Grumman decision “runs directly afoul of the express intent of Congress to divest the agencies of their previous power to define the jurisdiction of the boards through disputes clause requirements and regulations.” Further, the Council also charged that the Grumman opinion leaves an agency “free to manipulate at will the jurisdiction of a board, or the Claims Court, within a single case to the prejudice of the contractor: first, the agency, through its contracting officer, permits the appeal to be filed by issuing a final decision, but then later, through its litigation counsel, contests the validity of the certification by a post hoc reapplication of the regulation and demands dismissal.” As of course is obvious and without definitively opining as to the government’s intent to manipulate in the present case, this is the exact circumstance that occurred with Newport.
The AIA states that the central irony of the panel’s opinion is that “it finds Congress’s use of the word ‘contractor’ in the CDA to be ambiguous, justifying a regulation, while it finds that OFPP’s regulation ‘is unambiguous and must be applied literally.’ ” According to AIA, the ambiguities of the regulation • “make predicting the validity of the certification for a given claim impossible.”
At whatever stage in the proceedings, however late, the government raises an issue that the certificate is not proper, the contractor must return to the CO, recertify the claim, and begin the process over again. The government has the power to sap the strength of the contractor and deny it the recovery of interest by springing the defective certificate late in the game. I question whether it is in the government’s best interest to deprive a contractor of just compensation in such circumstances.
As reported in the November 11, 1991 issue of the Federal Contracts Report, the Office of Federal Procurement Policy’s administrator has asked selected federal agencies to comment on a draft policy letter which would substantively amend ánd clarify the FAR requirement as to who may certify contract claims when the contractor is not an individual. The draft letter would amend the May 9, 1980 OFPP Policy Letter 80-3 (46 Fed.Reg. 31,035 (1980)), which originally set forth the claims certification requirement now incorporated in FAR at 48 C.F.R. § 33.-207(c)(2). The new draft language would permit certification by: (1) any general partner; (2) any officer elected or appointed by the board of directors or governing body; or (3) any employee, other than a general partner or officer, who is authorized by the contractor to certify claims, which authorization could be accomplished by resolution of the board of directors or written authorization by an officer.3 It is stated that in drafting this *1569language, account was taken of the proposals made by the amici in Grumman and the suggestions of other interested parties, like the ABA.4
Although if adopted, this proposed language would eliminate some of the ambiguities involved in the certification of corporate claims, it does not address the fact that the certification requirement is still considered to be a jurisdictional prerequisite, another point which Grumman detractors, including its dissenters, have decried. Among those detractors, Chairman Paul Williams of the ASBCA has been of the opinion that even though a regulatory change would eliminate some of the problems that face the ASBCA after Grumman, there are other problems which would still require a legislative fix, namely, the jurisdictional nature of certification, which as currently interpreted can effectively bring ongoing proceedings to' a halt because jurisdiction may be 'raised at any time.5
In an effort to remedy this problem, the Claims Court submitted legislation to the House and .Senate Judiciary Committees which would establish that proper CDA certification is not a condition of subject matter jurisdiction (Claims Court.Technical and Procedural Improvements Act of 1991). The legislation specifically proposed to amend 41 U.S.C. § 605(c) to state that claim certification requirements are not intended to be a prerequisite to court jurisdiction but are ■rather curable statutory requirements which would be waivable by the government in appropriate cases. The legislation further provided that an absence of or defect in the certification discovered after a claim is in litigation could be cured by the contractor, thus avoiding the need to repeat the entire administrative claim process. The Federal Courts Study Committee Implementation Act of 1992 (S. 1569), which proposed to enact recommendations of the Federal Courts Study Committee, in addition to those incorporated in the Judicial Improvements Act of 1990, incorporated provisions of the Claims Court’s bill, including the certification/jurisdiction issue.
*1570On April 2, 1992, Senator Howell Heflin introduced a bill (S. 2521) to amend S. 1569. Under Senator Heflin’s amendment, certification of a claim under the CDA would not be jurisdictional, and would allow technically defective certifications to be amended under certain conditions. Hearings on the bill were held on April 29, 1992, - at which, among others, Chief Judge Loren A. Smith of the United States Claims Court, testified. As a result of modifications suggested by many individuals and entities, Senator Heflin introduced further amendments on July 26, 1992, which had the approval of all of the members of the Judiciary Committee. Section 1109 of an amendment would amend 41 U.S.C. § 605(c) by making certification of claims under the Contract Disputes Act non-juris-dietional. Cong.Rec. S11236, August 3,1992. Senator Heflin stated, in introduction of the amendment,
[wjasteful and esoteric litigation over this issue has produced several hundred written and, oftentimes, conflicting opinions from various courts and agency appeals boards. The language I include today is the result of much discussion between the Administrative Conference, members of the Judiciary Committee, and the Claims Court.
The language would not eliminate the certification requirement. . The language would permit an agency board of contract appeals or court to allow a certification to be amended if there are reasonable grounds and so long as the certification was not made fraudulently, in bad faith, or with reckless or grossly negligent disregard of the Contract Disputes Act or applicable regulations. This section shall also have prospective application....
Id Senator Thurmond also commented on the bill, indicating his support for S.' 1569 and Senator Heflin’s amendment, stating:
This legislation changes the requirement that a contractor must certify this claim pursuant to the Contract Disputes Act in order for the Claims Court to have jurisdiction over these disputes. The certification requirement is intended to prevent fraud, and encourage settlement of disputes by requiring a contractor to certify that the claim is honest and not inflated. Under current law, if a contractor fails to properly certify his claim, the claim is dismissed for lack of jurisdiction. There is simply no opportunity to amend the certification even if the impropriety is purely technical in nature.
This bill does not do away with the certification requirement or its jurisdictional nature. The legislation will authorize an agency board of contract appeals or court to permit a certification that is technically defective to be amended unless the failure to properly certify was due to the contractor’s fraudulence, bad faith, or reckless or grossly negligent disregard of the governing statutes or regulations. Therefore, a contractor who makes an honest mistake in the certification will not be penalized by having his claim dismissed. However, a contractor is still under a duty to abide by the governing statutes and regulations dealing with certification.
Id at 11237. The bill (S. 1569) passed the Congress, as amended, and finally became law on October 29, 1992.
The Claims Court has been open in hostility to the Grumman decision. In Shirley Constr. Corp. v. United States, 23 Cl.Ct. 686, 689 (1991), Judge Horn stated in a case governed by this court’s Grumman decision:
Although as a judge of the United States Claims Court, T find myself bound by the precedent currently in force, and squarely on point on the issue of certification raised in the instant ease, I am in total agreement with the language of the dissent in Grumman. I believe that Judge Plager and his colleagues are correct that the purpose of the certification requirement is to ensure that a claim is certified by a company official “able to speak for and bind the company regarding the claim.” Grumman, 927 F.2d at 582.... And, I agree with the dissent that “the [majority] panel’s pronouncement regarding what is required to certify a claim is not good law.”....
This court and other judicial bodies spend far too much valuable time hearing motions to dismiss, brought by the government to challenge jurisdiction in government contract cases on the basis of faulty *1571certification, only to find the very same eases refiled, at a later date, following additional administrative procedures to conform with the certification requirements of the statute and the regulations. The result is an inefficient use of the time of the courts, the government and the plaintiffs.
... This judge would welcome a new approach, by either the United States Court of Appeals for the Federal Circuit or by the Congress, which directs that failure to certify in accordance with the very narrow requirements currently in force is not jurisdictional. It is widely recognized that the litigious nature of our society has overextended the resources of the courts and adds an economic burden on business of all sizes through costs of litigation. Here, is a sensible and simple opportunity to ease all those burdens.
Subsequently, in Aleman Food Services, Inc. v. United States, 24 Cl.Ct. 345 (1991), Judge Horn again evidenced her dissatisfaction with Grumman (and with the government’s procedures in challenging certification, noting that the government’s motion, as in Newport, was filed at the “eleventh and a half hour” of the ease, just before the pretrial filings were due and right before the commencement of the trial). The judge stated in part:
This court is not one which favors the certification requirement in its current form, as it has been interpreted by the courts and parts of the government contract community. In fact, this court has previously made its position known in Shirley Constr. Corp. v. United States.... The generally acknowledged, current state of the law, which holds that failure to certify is jurisdictional, however, has tied this and other courts up in unnecessary knots....
In general, this court is loath to put itself in a straight jacket and adhere blindly to a rigid, and perhaps unworkable, interpretation of the words “overall responsibility.” ... this court believes strongly that a certification requirement must and can be devised which does not also legislate the manner in which private business entities are forced to set up their corporate structure.
24 Cl.Ct. at 352-53.
We are not bound by the opinions of the Claims Court. However, the views of those on the “firing line” are entitled to respect.
A July 22, 1991 issue of the Federal Contracts Report stated:
It is imperative that either the courts or Congress address this certification problem and return the certification procedure to the intent of the CDA. Even as outspoken a critic of contractor claims as Admiral Rickover stated in his recommendation that the certification provision be included in the CDA merely to “put the contractor in the same position as our working man, the income tax payer who must certify his tax return.” Contract Disputes Act of 1978: Joint Hearings on S. 2292, S. 2787, and S. 3178, Before the Senate Governmental Affairs Subcommittee on Federal Spending Practices and Open Government, 95th Cong., 2nd Sess. 21 (1978). It is inconceivable that Admiral Rickover’s recommendation that a claim be certified by a “senior responsible contractor official” would 12 years later be construed so narrowly as to effectively preclude all but those at the CEO level.
Until such time as either the courts or Congress address this issue, as strongly suggested by the dissent in Grumman, contractors should be aware of the narrowing range of acceptable certifiers when submitting a claim of more than $50,000 to the government. Accordingly, a contractor would be well advised to have all claims certified by the CEO until statutory, regulatory, or judicial remedy is fashioned.
Chairman John S. Pachter of the ABA’s Public Contract Section, optimistically stated (Public Contract Newsletter, Vol. 27, No. 2, Winter 1992, at 15-16) that based on the Claims Court’s and the OFPP’s efforts to circumvent Grumman, “it is fair to say that reform is in the air. These bright signs may help bring order and rationality into the claims process and avoid the wasteful litigation that has regretfully been so typical in recent years.”
*1572It is clear from the range of criticisms which have been leveled at Grumman and from the actions which have been taken aimed at correcting the practical problems which arose out of Grumman, and like decisions, that this court should reevaluate the pronouncements there in order to bring the certification procedure into line with the clearly enunciated policies of the CDA (“to induce resolution of more contract disputes by negotiation prior to litigation; equalize bargaining power of the parties when a dispute exists; ... and insure fair and equitable treatment to contractors and Government agencies”) and, as Professors Nash and Ci-binic urge us, exercise common sense.
CONCLUSION
In the time that has elapsed since this case was argued in February 1992, the President signed into law on October 29, 1992, the Federal Courts Administration Act of 1992 (FCAA), Pub.L. No. 102-572, 106 Stat. 4506 (1992) (effective Jan. 1, 1993). The FCAA amended section 6(c) of the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-613 (1988). Section 907(a) of the FCAA provides, in pertinent part, that:
(6) ... A defect in the certification of a claim shall not deprive a court or an agency board of contract appeals of jurisdiction over that claim. Prior to the entry of a final judgment by a court or decision by an agency board of contract appeals, the court or agency board shall require a defective certification to be corrected.
(7) The certification required [under the CDA] may be executed by any person duly authorized to bind the contractor with respect to the claim.
The FCAA further provides in section 907(a)(7)(2) that the foregoing amendments “shall be effective with respect to all claims filed before, on, or after the date of the enactment of this Act, except for those actions which, before such date of enactment, have been the subject of an appeal to an agency board of contract appeals or a suit in the United States Claims Court.” Congress thus went as far as it could without interfering in pending litigation.
There is more good news in the fact that the Office of Federal Procurement Policy (OFPP) has taken notice of this legislation and the reasons for it and has announced implementation of its views set forth in Policy Letter 80-3, see supra note 2, by amending and further simplifying the FAR to assure that what it describes as “substantial confusion and persistent litigation” will no longer contravene the CDA’s avowed goal of ensuring the prompt and efficient resolution of disputes between contractors and the government. How, when, where, and by whom certification is to be accomplished, and defective ones corrected, is stated in clear language that does not restrict or expand the statute. The offending FAR is history and so is Grumman, its forebearers and offspring. 58 Fed.Reg. 5039-41 (1993). The effective date was 60 days from this publication in the Federal Register. Those concerned are referred to the Federal Register for the language used.
Thus, the criticisms of the certification provision as jurisdictional and the implementing regulation, outlined above in some detail for the record, are all expressly validated by congressional and administrative action, notwithstanding the failure of the court to do so to date. Of course, the new statute and FAR are not retroactive so as to cure the problem in the instant case. But, the court having created the problem earlier should take heed and correct it in pending cases. Putting an end to continuing waste in judicial and financial resources, and mischief so evident, would seem to be the fair and common sense thing to do since the Grumman line of cases made a certification defect jurisdictional, beyond congressional intent and the statutory language, as is now made clear by repudiation of that view in the 1992 legislation and its history.
Incredible as it may now seem, here we are still insisting in the present majority opinion that a defect in certification is a jurisdictional bar to relief and that it cannot be changed for any reason in a pending case. That idea disregards the weight of new evidence, described above, that the time is now here to take a fresh look at this proposition. I have changed my own mind in light of the *1573considerations set forth in this dissent, including the action of Congress on the subject. The majority opinion, however, belittles critics of the Grumman jurisdictional theory, and FAR objectors, as unworthy of judicial attention whether they are legal commentators, contract law professors,.spokesmen for the government contract community, other courts and judges, contractors, the bar associations, the OFPP, or the Congress of the United States, among others. The Supreme Court is more flexible. Indeed, it is hard to find defenders of the jurisdictional bar theory anywhere but on the Federal Circuit. The astonishing, crippling effects of this con-gressionally recognized mistake interpreting the CDA are nevertheless regarded by its defenders as insufficient reasons to correct an announced holding as a matter of law. Be that as it may, the court can do so when legal error is recognized for whatever reason makes it “a question of exceptional importance.” Fed.R.App.P. 35(a); Fed.Cir.R. 35(a).
In short, the effect of the certification as jurisdictional has been an erroneous interpretation of that provision of the statute in the opinion of most who have spoken or written about it, or had to live with it. Finally, the unsoundness of it is in the additional fact that Grumman need not have been decided on this basis at all, although it is enshrined by the majority as judicial holy writ, mainly because it was decided long ago and has been followed by those unwilling to look at it again. In Grumman, the contractor’s claim was for $48,707, an amount below the certification requirement threshold of $50,-000. Grumman, 927 F.2d at 577. Unfortunately, counsel overlooked this point and did not urge it on appeal. The court said it was too late to raise it for in banc consideration and refused to consider it, although admitting that subject matter jurisdiction may be addressed at any time. The court then disagreed with the board and held that the certi-fier was not qualified because he did not have “overall responsibility for the conduct of the contractor’s affairs” and was not in charge at the contractor’s “plant or location involved,” as the regulation then required, applied literally. Thus, the court was presented with a claim on which relief could not then be granted. That was enough to decide the case. But the court took another and unnecessary step, as had been done in a few earlier cases, saying that certification was jurisdictional. Unfortunate consequences to the entire contract community followed, as described above. This dicta should be disregarded and Newport provides an opportunity to put this sad chapter behind us for reasons shown above, now recognized by the Congress of the United States and others concerned in the public contract community.
The majority in the present case cites other cases which have made the same legal error, relying on dicta in Grumman as authority to certify a contract claim for less than $50,000, contrary to the statute. This compounding of error cannot be defended. It is pertinent to note what Mr. Justice Holmes said, almost 100 years earlier, about the technique now followed in the present case:
It is revolting to have no better reason for a rule of law than that ... it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
Oliver Wendell Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).
. An article in the ABA’s Public Contract Newsletter stated: "Adjudicating the validity of a contractor’s ‘ certification threatens to displace resolving disputes on the merits as the primary function' of the Armed Services Board of Contract Appeals (ASBCA).” Volume 27, No. 2, Winter 1992, at 3. The article continued, stating "there has been a sudden and dramatic increase in litigation over one particular aspect of certification — who may certify a claim on behalf of a corporate contractor — since the United States Court of Appeals for the Federal Circuit’s ruling in United States v. Grumman Aerospace...." Id. In the first ten months of 1991, 145 of the ASBCA’s 441 published decisions discussed the validity of the contractor’s certification, besides the volume of unpublished orders and decisions. Id. at 4. The article further stated: "In light of the technical interpretations of the CDA’s procedural requirements, resulting in needless delays and wasted resources, something needs to be *1567done. When one fishes for sharks but catches only porpoises, it is time to change the nets to allow the porpoises to escape with as little damage as possible.” Id. at 5-6.
. The Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 902(a), 106 Stat. 4506, 4516, changed the name of the United States Claims Court to the United States Court of Federal Claims. However, for purposes of this dissent, I shall refer to the "Claims Court” since that was the appropriate designation at the time this case was appealed.
. OFPP proposes to replace the existing regulation with the following language:
If the contractor is an individual, the certification shall be executed by that individual. If *1569the contractor is riot an individual, the certification shall be executed by:
(i) Any general partner of a partnership in which all the general partners are individuals;
(ii) Any officer elected or appointed by the contractor’s governing body (the board of directors where there is such a board); or
(iii) Any employee who is duly authorized by name or by position, without the power of redelegation, to bind the contractor in certifying Contract Disputes Act claims as the result of:
(1) A written resolution by the contractor's governing body (the board of directors where there is such a board); or
(2) In the case of a contractor composed of two or more parties (such as corporations) that lacks a governing body:
(a) The written agreement establishing the contractor; or
(b) A written resolution by each member party’s governing body (the board of directors where there is such a board).
The Letter included two pages of Supplementary Information “to highlight the mechanics of the proposed certification language as it applies to non-individual contractors,’’ including explanations of certification requirements as applied to officers, authorized employees, joint venture contractors, partnerships, state, local and foreign government contractors and contractors in bankruptcy.
Notice, Office of Management and Budget, Office of Federal Procurement Policy’s Request for Comments on a Proposed Amendment to OFPP Policy Letter 80-3, March 10, 1992, 57 FR 8495-04.
. The ABA Section of Public Contract Law, meeting in conjunction with the annual ABA meeting in Atlanta, August 10, 1991, 'had approved a proposal to revise the FAR so that the claim could be certified by a general partner, a board-elected official, or an official of the contractor authorized by the board to certify the claim.
. Chairman Williams further stated that until the certification requirements are clarified there'is the potential for abuse by both sides, in that either party could wait for the case to be decided on the merits and if dissatisfied with the result, then allege a defective certification [just as happened in the current Newport News case]. See Universal Canvas, Inc. v. Stone, Secretary, 975 F.2d 847 (Fed.Cir.1992). One of the main flaws in the Grumman decision, according to Williams was that even though the panel maintained that it was not espousing a “chief executive officer’s only” rule for certification, neither did the panel offer any guidance as to which other individuals may qualify under the second prong involving "overall responsibility for the conduct of the contractor's affairs.” Paul Williams, Certification of Contractor Claims after United States v. Grumman Aerospace, Public Contract Newsletter, Winter 1992, at 3.