Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017). This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act (CDA) jurisprudence, it serves as a helpful reminder that the Board’s jurisdiction hinges on compliance with basic requirements. Failing to meet any of those requirements could have significant consequences.
The CDA Certification Requirements
The CDA requires contractors to submit claims first to the Contracting Officer and imposes specific requirements on the form and content of the claim. Notably, the claim must be in writing, and must include: a “sum certain” if the claim seeks a monetary amount, the bases for the claim and a request for a final decision. 41 U.S.C. § 7103(a). Additionally, for any monetary claim exceeding $100,000, someone authorized on behalf of the contractor must submit a signed certification which states 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 Government is liable; and (D) the certifier is authorized to certify the claim on behalf of the contractor.” 41 U.S.C. § 7103(b). See also FAR 33.207(c).
Although these are seemingly simple requirements, contractors still make mistakes – and potentially jeopardize their ability to further prosecute claims before the Boards of Contract Appeals and the U.S. Court of Federal Claims.
The NileCo Decision
In NileCo, the contractor sent an email to the Contracting Officer requesting a final decision on a $2 million claim. The request included language certifying the claim, but only provided the typewritten name of an authorized company representative. The Government challenged the Board’s jurisdiction, arguing that the contractor failed to properly certify the claim because the typewritten name was not a signature. NileCo responded that the typewritten name was consistent with parties’ course of dealing. The Board agreed with the Government.
In reaching this conclusion, the ASBCA repeated the black letter law of claims, noting that the CDA required that an authorized representative of the company execute the certification. Id. at 4 (citing 41 U.S.C. § 7103(b)). It then explained that executing the certification requires a signature and a signature means “the discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of the individual.” Id. at 4 (citing FAR 2.101). Although a signature could be handwritten or it could be an electronic and digital signature, the Board clarified that it simply could not be a type written name. And unfortunately for NileCo, its “certified” claim contained only a type written name and nothing that the ASBCA could construe as a signature. Id. at 4.
The Board also rejected NileCo’s argument that the type written “signature” was consistent with the parties’ course of dealing. In addition to questioning the factual basis for the argument, the Board found the legal underpinning unpersuasive. The signature requirement is a jurisdictional prerequisite established by the CDA and the parties cannot agree to waive or modify the requirements. Id. at 5 (citing Teledyne Continental Motors, Gen. Prods. Div. v. United States, 906 F.2d 1579, 1582 (Fed. Cir. 1990)). Thus, even if the parties agreed to accept typewritten names as signatures, such an agreement cannot confer jurisdiction.
While hardly a ground breaking decision, it does provide several key takeaways for contractors submitting certified claims:
- The certification of a monetary claim exceeding $100,000 must include a signature.
- The signature must be handwritten or an electronic or digital version — it cannot be a typewritten name. See also Teknocraft, ASBCA No. 55438, 08-1 BCA ¶ 33,846 (noting that “//signed//” is not a signature).
- CDA claim requirements – like the signature requirement – are jurisdictional and cannot be waived by agreement with the agency. (A failure to “sign” amounts to a failure to certify.)
And although this mistake often can be corrected by submitting a revised certification with proper signature to the contracting officer, submitting a revised certification after the six-year statute of limitations period ends will effectively end the dispute as the claim will be time-barred.
The bottom line: failing to heed to these basic jurisdictional requirements can prove to be fatal.