DISMISSED FOR LACK OF JURISDICTION: August 5, 2008 
CBCA 1153 
MEDTEK, INC., 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Shawn R. Farrell of Cohen, Seglias, Pallas, Greenhall & Furman PC, Philadelphia, 
PA, counsel for Appellant. 
Kate Gorney, Office of Regional Counsel, Department of Veterans Affairs, 
Philadelphia, PA, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), GILMORE , and DRUMMOND . 
DANIELS , Board Judge. 
The Department of Veterans Affairs (VA) moves the Board to dismiss for lack of 
jurisdiction an appeal filed by MedTek, Inc. For the reasons explained below, we grant the 
motion and dismiss the appeal. 
Background 
The VA and MedTek entered into a contract under which Medtek was to renovate an 
x-ray special procedure suite at the VA Medical Center in Philadelphia, Pennsylvania. 

 
  
 
    
 
     
   
   
  
       
  
   
   
            
  
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A dispute arose regarding the total amount of money the VA is obligated to pay 
MedTek for its work on this project.  According to an unsworn “affidavit” submitted by 
MedTek’s president, on January 24, 2008, the parties participated in a mediation session 
conducted by Judge Lowell A. Reed, Jr., of the United States District Court for the Eastern 
District of Pennsylvania.  Appellant’s Response to Motion to Dismiss for Lack of 
Jurisdiction (Appellant’s Response), Exhibit 1, ¶ 3.  At this session, “Judge Reed inquired 
as to whether or not any procedural requirements were not followed by MedTek, that would 
preclude [the VA’s contracting officer] from issuing a final decision.”  Id. ¶ 5.  “After 
consultation with counsel, [the contracting officer and VA counsel] all conceded that there 
were no more procedural requirements necessary before final decision could be rendered in 
this matter.”  Id. ¶ 6. 
On January 26, 2008, MedTek’s president sent a letter to the contracting officer. 
Appellant’s Response, Exhibit 1, ¶ 7.  The letter states: 
Previously, Medtek, Inc. had submitted a Final Application for Payment 
No. 12, that contained a request for payment of a pending change order, in the 
amount in excess of $350,000.  At the mediation, Medtek, Inc. was informed 
that the payment application would not be processed with the inclusion of this 
change order.  Furthermore, Medtek, Inc. was informed that a final 
determination on the pending change order was not rendered. 
The purpose of this letter is to inform the VA that Medtek, Inc. is 
enclosing a final application for payment.  As instructed by the VA, this 
application does not include any amounts concerning the pending change 
order. . . . 
Furthermore, Medtek, Inc. requests that a final determination of its 
pending change order request be rendered.  To facilitate that determination, 
enclosed please find an additional copy of all the documentation that supports 
Medtek, Inc.’s claim for additional consideration. 
Motion to Dismiss for Lack of Jurisdiction (Motion), Exhibit 1 at 6. 
Attached to the letter were a “contract progress report” appearing to assert that the 
total value of work under the contract was $734,079.17 and two additional documents. 
Motion, Exhibit 1 at 7-10. The first of these documents shows a figure of $692,729.17 for 
“total previous payment” and a figure of $41,350 for “amount of this estimate.”  Id. at 11. 
The second document includes the sentence, “Since the work has been completed in 

 
  
  
 
   
     
    
    
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accordance with plans and specifications and accepted, it is recommended that final 
settlement in the amount of $41,350.00 be authorized.”  Id. at 12. 
At the bottom of the first of the two untitled documents referenced in the preceding 
paragraph is the following statement, which appears directly above the signature of 
MedTek’s president: 
Claim made as indicated above, I hereby certify, to the best of my knowledge 
and belief, that -­
(1) The amounts requested are only for performance in accordance with the 
specifications, terms and conditions of the contract; 
(2) Payments to subcontractors and suppliers have been made from 
previous payments received under the contract and timely payments will be 
made from the proceeds of the payment covered by the certification, in 
accordance with subcontract agreements and the requirements of chapter 39 
of title 31, United States Code; and 
(3) This request for progress payments does not include any amounts which 
the prime contractor intends to withhold or retain from a subcontractor or 
supplier in accordance with the terms and conditions of the subcontract. 
Motion, Exhibit 1 at 11. 
By letter dated February 6, 2008, the contracting officer responded to MedTek’s 
January 26 letter.  Motion, Exhibit 1 at 4-5.  The contracting officer understood that MedTek 
was “requesting payment in the amount of $350,000 under protest for delays, legal fees and 
losses incurred in connection with additional work performed related to the installation of 
the UPS (Uninterrupted Power Supply).”  Id. at 4.  She said that the VA was denying 
MedTek’s claim and gave reasons for this determination.  She then concluded, “Should you 
disagree with this decision, you may file an appeal with the Director/Acquisition Policy & 
Review Service . . . , Department of Veterans Affairs. . . .  In the alternative, you may file an 
appeal with the General Counsel, General Accounting Office.”  Id. at 4-5. 
On April 22, 2008, MedTek filed a notice of appeal from the contracting officer’s 
February 6 letter, which MedTek considered a final decision.  The notice of appeal seeks 
“[p]ayment of $350,000 in extra costs” which are “related to the failure of the VAMC 
[Veterans Affairs Medical Center] to timely close-out the Project and design issues related 
to the installation of an Uninterrupted Power Source (‘UPS’) system.” 

    
  
   
 
      
    
 
     
  
         
   
 
 
      
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Discussion 
The Contract Disputes Act of 1978 includes this requirement: 
For claims of more than $100,000, 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, that the amount requested accurately reflects 
the contract adjustment for which the contractor believes the government is 
liable, and that the certifier is duly authorized to certify the claim on behalf of 
the contractor. 
41 U.S.C. § 605(c)(1) (2000).  
As one of our predecessor boards of contract appeals explained: 
If the dollar value of a claim is above the certification threshold and the claim 
is not certified, we have no jurisdiction to consider an appeal from a 
contracting officer’s decision on that claim.  Even if the contracting officer 
issues a decision on the uncertified claim, that decision is considered a nullity 
and is therefore not a proper subject for appeal because the contracting officer 
has no authority to issue the decision. 
Aylward Enterprises, Inc. v. General Services Administration, GSBCA 16649, 06-2 BCA 
¶ 33,298, at 165,128 (citations omitted). 
The VA contends that MedTek’s claim was for more than $100,000 and was not 
certified, so the Board has no jurisdiction to consider the appeal.  MedTek offers three 
reasons why we should find jurisdiction and deny the VA’s motion: 
(1) The claim was properly certified. 
(2) Even if the claim was not properly certified, the defect in the certification was 
merely technical, and a technical defect does not pose an impediment to the Board’s 
jurisdiction over the appeal. 
(3) The actions and statements of the VA before Judge Reed indicated the 
agency’s agreement that all conditions precedent to jurisdiction have been satisfied. 
None of these assertions is convincing.  

 
 
    
   
 
 
 
   
   
 
            
 
      
    
  
      
     
  
 
   
    
 
 
 
5 CBCA 1153 
First, there is no evidence that the claim which is the subject of the notice of appeal 
was ever certified at all.  MedTek’s January 26, 2008, letter, which the parties seem to treat 
as a claim, when viewed in conjunction with its attachments, appears to address two separate 
matters.  One is “payment of a pending change order, in the amount in excess of $350,000.” 
The other is payment of the difference between a total contract amount and the total of 
previous payments, $41,350. To the extent that MedTek has made any certification, that 
certification is as to the second of these matters.  We see no certification as to the matter 
which is the subject of the notice of appeal. 
Second, although “[a] defect in the certification of a claim shall not deprive . . . an 
agency board of contract appeals of jurisdiction over that claim,” 41 U.S.C. § 605(c)(6), the 
absence of certification of a claim for more than $100,000 is not a correctable deficiency. 
K Satellite v. Department of Agriculture, CBCA 14, 07-1 BCA ¶ 33,547, at 166,154; Keydata 
Systems, Inc. v. Department of the Treasury, GSBCA 14281-TD, 97-2 BCA ¶ 29,330, at 
145,824.
1   It is true that in responding to the VA’s motion to dismiss, MedTek included a 
properly phrased certification as to the matter which the company has attempted to place 
before the Board.  See  Appellant’s Response, Exhibit 1 at 2.  The submission of a 
certification after an appeal has been filed has no legal bearing on the Board’s jurisdiction 
over the case, however; it cannot serve to cure a lack of jurisdiction.  B & M Cillessen 
Construction Co. v. Department of Health & Human Services , CBCA 931, 08-1 BCA 
¶ 33,753, at 167,083 (2007); Aylward , 06-2 BCA at 165,128. 
Third, jurisdiction of the Board over Contract Disputes Act appeals is established by 
statute.  Congress has not given agencies license to waive prerequisites for the Board to hear 
appeals.  Pacrim Pizza Co. v. Pirie , 304 F.3d 1291, 1294 (Fed. Cir. 2002) (citing Insurance 
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 701-02 (1982)). 
Whether or not the VA lawyers and contracting officer told MedTek and a federal judge that 
all such prerequisites had been fulfilled, that advice has no legal significance.  (We note that 
MedTek realizes that the VA’s advice in another regard has been incorrect:  The contracting 
1 MedTek cites Engineered Demolition, Inc. v. United States , 60 Fed. Cl. 822 
(2004) for the contrary proposition.  Dicta in that decision indicate that in limited 
circumstances, missing certifications may be treated as defective.  Id. at 829-30.  The Board 
is not bound by decisions -- much less the dicta -- of the Court of Federal Claims, however, 
and the limited circumstances in which the court thought its dicta would apply are not present 
here.  Furthermore, the court found jurisdiction in Engineered Demolition for a reason which 
had nothing to do with the presence or absence of certification: the contractor had submitted 
two claims, each in an amount of less than $100,000, and because the claims were “separate 
and independent in nature,” no requirement for certification applied.  Id.  at 831. 

  
 
 
     
  
 
    
  
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6 CBCA 1153 
officer told the company that it had alternative avenues of appeal of her decision -- to a 
higher-level VA official or to the General Accounting Office (whose name since July 7, 
2004, has been the Government Accountability Office, see  Pub. L. No. 108-271, § 8, 118 
Stat. 811, 814 (2004)).  As MedTek knows, a contracting officer’s decision may by statute 
be appealed to the cognizant board of contract appeals or challenged by direct action in the 
Court of Federal Claims.  See  41 U.S.C. §§ 606, 609(a)(1). 
MedTek is of course free to resubmit its claim to the contracting officer, along with 
a proper certification.  And if the company is not satisfied with the contracting officer’s 
decision, it may appeal that decision to the Board.  Because the Government’s consent to 
such a suit is a waiver of sovereign immunity and such waivers must be construed strictly in 
favor of the sovereign, however, Pacrim Pizza , 304 F.2d at 1293 (citing United States v. 
Nordic Village, Inc. , 503 U.S. 30, 34 (1992)), we cannot consider MedTek’s appeal now. 
Decision 
The VA’s motion is granted.  The appeal is DISMISSED FOR LACK OF 
JURISDICTION . 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
BERYL S. GILMORE JEROME M. DRUMMOND 
Board Judge Board Judge