please the court of jonathan schafer for the collins yeah i close the border area as a matter of law below dismissing da ice appeal and the courtroom reversed based on at least three alternative rounds st the board failed to the it started off in the senate bill and it passed the senate it was dropped and the in the final analysis those words at the borderline on technical and reckless disregard aren't are not in the law that was passed in front of  and that's the case here by dismissing on jurisdictional grounds contrary to the statute the the board basically has caused our client to forfeit their claim and so it's actually limitations in interest or what's really key well it's statute of limitations is really what's key here because that april that april certification is beyond that time period but the important thing is that the may ten letter of the certification met their parents in the statute in th which is more than sixty days beyond the statutory response period they came back and they said you never submitted a certification all you have is something from your subcontractor but if you turn to appendix page twenty nine dollars the certification is on d i i let and i'm contract numbers and then it says the i believes are the sound basis for the claim and they say we submit this claim in the certification in satisfaction of the requirements of the contract disputes act so they were clearly  certification arms and the government responded more than sixty days later they were supposed to respond within sixty days that involved rules but they responded later and they said we never got a sort of cation from you we only have a subcontractor certification but this is not a subcontractor  s certified claims why does that suggest that this isn't really a certification well it's a it's a pass you claim and you're always going to have that type of language in the past you claim and this court in turner and trans america approved of that approach because the prime contractor is going to was pretty with the government so it has to be that the crime is passing through the claims now the subcontractors the one who has the books and records they have all the knowledge about in this case fines and how it's allocated between the various contracts so the st step is the prime gets from the subcontractor a certification and then they take it and they put on top of it their own certification according to the contract and let me ask you we have it eight excuse me eight hundred and forty seven an example of one of the sub contractor certifications there were five of these one for each subcontractor you is there any relevance to the sub contract the sort of occasion in this case because it does seem that that certification albeit by a subcontractor has the magic language was wired by the regulation is turn transamerica says you can have these bassam claims you just have to say that there's good ground for them and then in one thousand nine hundred and ninety two congress said we're tired of all this litigation over what's a certification was the authorized official that they use all the magic words so congress expressly stated that defective certification is no longer jurisdiction and this case really is a classic example of what i was trying to fix this is a certification that did not meet all of the formal requirements of the contract disputes act but it walk or something some other standard that the court might come up with because they said on the face that we're invoking the contract disputes and so and then they followed the language they then if i the specific federal government contracts that are issue submitted to a contracting officer and in the case of a claim worth more than one hundred thousand dollars there has to be a certification so i think the government could say that if it receives a claim for one hundred and fifty thousand dollars without a certification there's no claim under the c d a and hence no jurisdiction i would understand that that position before the nine hundred and ninety two dollars amendment in i think that the court has said don't don't look for address the general meaning in a statute when it's not there when it's not clear on its face now now here again you're going to reach that because the language talked about well you wouldn't act of sort of if you didn't necessarily have a final decision in the in the situation judge articulating right because the deem denial sixty days out is from when the claim was filed with the defective certification and the officer doesn't notify you know is that right that's the august letter then the contracting officer came back within the sixty day period and said it's effective so you don't have a ding denial for the august letter correct and that's correct oh it wouldn't be a final decision if i said may th what the may th letter wasn't a defective certification and then but maybe the august one was you have action by the contractor within sixty days so you have no final decision from which you can appeal at the may ten sort of occasion is critical  just just just to be clear i don't think this matters at all to your point i thought that the timing provision said sixty days the c e o has to tell you it's defective or give you a decision and the c e o here on the st day which was on monday did that by saying i'll give you a decision in forty five days forty five days elapsed i thought it's at that point that then say well it's too late to go to the board and that defeats the whole purpose of this having the board as a solution for him the case i mentioned is case the united states eighty eight  please the court i think the court does understand that the focus here is that made ten submission and you start where we left off though absolute has the government argued that if the may th submission defective certification and therefore if there was a deem denial because the contracting officer didn't respond within sixty days is mr shafer correct that the law allows the you my friend is incorrect but i couldn't verify you well didn't raise for example any kind of jurisdictional impediment in this case with visa v that appeal to the board at least thus far pressure on our  that the structures designed is that if flows through the contracting officer and without the certification in front of the contracting officer become tricks enough there's no way of knowing whether the he i specifically said i can tell you just asked so the statute with respect to the accuracy point doesn't say you have to certify it's accurate you have to certify it's accurate to the best of your knowledge and at that point d i r it seems to me sensual says that it's just that it's knowledge was about this thing at the moment i think that's right and so i think you have to i agree that what they said was not that they had taken or taken any sort of investigation and i understand th  to the best of the contractors knowledge and belief are you what what are you suggesting that requires the contractor to do and say in this case what if they simply said we certify the supporting dat accurate incomplete to the best of our knowledge and believe that would be sufficient or that would be sufficient will grow light isn't that kind of what they've done and they said look we didn't we don't have access to all their numbers so as far as we know this looks great well i mean let's looking at that may th submission they said that they have no knowledge to suggest that yahoo's knowingly or intentionally failed to comply with the arguments of the c d a whereas accident and that faith that's different from saying of the supported data or accurate that i'm having trouble with that difference it's just that their knowledge was paper thin so they are saying this is as much as we know we don't know about right this is much as we know that but they're not saying that they're not saying that it's accurate and complete so they're not saying that they're not there that the sport again is complete all they're saying is that they have no reason to think that it is the d i i is not complying with c d a or exactly that is a different and they say da i must except i'm a lie e r s m certification at face value they're telling you that we have to rely on their representations we have no way of looking beyond the curtain to get a peek at the wizard and we can't i say in addition we have no knowledge that suggests that they've done anything that isn't right and i think that point your honor goes back to my friend's contention that somehow the fact this understanding the basic free ice cream but that's not that's in significant or relevant under the c d i when is it the contractor itself needs to take responsibility for the claim to what's been done here which is the effect of punting it into the contracting officers last one let me ask you what would be the suit we have here if there is we have them a ten letter and then we've got the the certification by the subcontractor what would be the situation if instead of the mate and later that we have your d n a i had said we incorporate by reference as a certification all of the statements made by e i ers  its certification what would the government's position be then well i think the you're out of the wording of that preface we would match so they could certify that that e i i don't think that would be sufficient because at that point they're not the d n i would not be standing and as verifying and certifying the facts of the underlying information they can certify that they can say yes we are to do in this situation when the prime contractor is presenting the claim of a sub contractor that is on its own certified but there are many cases that really talk about the magic words i don't think that the exact facts here have been addressed this and there's only regulation i guess the talks about it is there that's correct or as you point out there's no statute that right and i will say that in the arnold i mean case trans american term which have been referred by the parties there were certain subcontractor issues but they the facts were different in those cases as we point  bruce because in each of those three cases the contractor had submitted a cd a compliance sort of occasion the question in those cases was whether some some reservation of mine in the in the mind of the contractor as whether the c e o should ultimately grant those claims whether back negated see a complaint certification and that's not this case because there's no in the s of mission there's no underlying correct procedurally correct certification and so the the question of qualification doesn't arise here was it can assess you this the statute has pretty limited language in saying what has to be certified mostly because it builds in to the crucial thing but to the best of my knowledge and belief which is literally satisfied if you just don't have any real knowledge why isn't the kind of thinks that the contractor hasn't done enough to acquire the knowledge that the government wants in order to hold a contractor liable for claims ultimately traceable  subcontractor but that's a matter of the contracting officer telling the claimant contractor this is not enough it's defective and then and therefore all in the pocket of a defective certification which they're entitled to correct if they can where and i think if i understand your question the responsibility to respond the contractors officers it seems that in the absence of language in the statute demanding a certain level of knowledge it's hard to get a this is not a certification conclusion out of a premise that you don't know enough for us to rely on it that seems more a matter of defect than nonexistence well i think that at some point your hon difference in degree becomes a difference in kind in their four requirements set forth in the c d a and we've shown that the ai in the made sense of mission met none of them so i of course understand your honour's point about at some point if they say we don't know they just don't know and that could be sufficient statute but there's also the requirement of statement that the claims made a good faith they don't say that it's a sound basis which differ they talked of course about look at what's been submitted but on these facts and the submission it's theirs it's nothing's there and so there is no requirement to issue a final decision and and that again your honor goes back to my point that what's happened is that the guy has punted the requirement for developing a complete and good faith claim into the contract another slap and that hasn't happened here and so on those grounds contracting officers  right refused to issue a final decision long is there is that the government's position that there has to be a subcontractor certification assume for the moment that we had a full and complete certification with all the magic words from the prime contractor but there was no subcontractor certification in your what's your position in that situation well your honor i would say that that doesn't doesn't create that requirement the that the relevant factor here is the contract and throughout the throughout the statute and there's all this later you're saying that the contractor could receive documents from the sub contractor but no certification from the sub contractor and it would be enough if in that situation the contractor presented the certification that's required under the statute regulations yes or it's right and i think as a practical matter that goes back to the relationship between the prime in the sub and the primes ability to develop the claim ask questions of the determine whether it believes that there's enough there for the pride itself to make the required certification but the package in front of the c e o and go forward does the government view a situation like this as being presented with a subcontractor claim that the prime is just passing through or does the government view this as really being a prime contractor claim the latter sub contractor doesn't have to certify when contracting officer is deciding whether the claim is valid is there opportunity for the contracting officer to communicate with the subcontractors so as to get submissions that might be subject to i don't know eighteen u s c one thousand and one and other requirements but i believe i believe that would be possible your honor i'm not you know i'm not thinking of a discussions you couldn't develop more information i don't see one well on one concern i have is on august rd m t a i attempted to correct the problems with the certification and one august he or she in this letter on page one hundred and twenty four dollars understood the august rd submission to amount to a defective certification is that a fair reading of the contracting officers response on page one  cents i would i would agree rather that it seems ambiguous from the submission and i think that is a fair reading i think it also could be read as the certification is lacking but i think that the wording that you're pointing to does suggest that the c submission i don't see that the august rd cured the defects that you have identified in the may th letter and so if the contracting officer nonetheless looked at the august rd letter and said this is a defective certification and why wouldn't the may t likewise be an effective certification what are there any critical differences between that august rd that you could point me to that would say ok well this got over the hurdle and went from being no certification at all to being a defective serve occasion well certification and satisfaction the requirements in that language just looks so much like the language in the may th letter that i guess i'm not seeing a lot of daylight between the two letters and my problem is that t defective rather than a nonstarter the case and therefore say fix this and that that sort of discretion lies in her and i think that for example what can happen in this is my firm is going to is a contract officer down unless my colleagues have anything further the government i think it's fair to say in the red briefcase it's a little bit from the board decision they're all you know have to acknowledge that you can just say nothing but i understood it to be a bit of a  that is the correct standard under the so that shoot to apply because the board then cites a series of contract board only cases they're after and i'll admit i haven't gone through each of those but i'm just i'm a little nervous that the board has adopted the statute that didn't get an active as opposed to the one that did and i'd like the government's views on whether this is a correct statement of the statute that did get an act your  submit that you don't need to reach that question ultimately the question of whether it's reckless or grossly negligent is an intent question that doesn't that you don't need to resolve the c b c it doesn't need to resolve you can stop and look at what's been submitted and ask whether it provides enough information and enough certainty for the contract enough to go forward it's certainly it would matter for example if the board is correct that the only kinds of defects that can be corrected are technical likes or  small technicality type defects then it seems to me you have a clear victory with this may th letter so it does matter to me if the board is wrong and correct ability is in fact much broader in the nature of the defects could be of  and you have a much tougher possibly insurmountable case for the may th so actually it does matter to me in terms of the outcome of the case so i'd like to know whether that the government things this technical only defects is a proper interpretation of the statute that was in fact adopted well i think you're right or this may not be fully satisfy you but to answer the question i think that you can look to the definition of a defective claim in the bar which  bit further right because our thirty three to zero why doesn't just talk about altered or deviating language it says or which is not even executed by a person that actually had the authority to bind the contract or so while that would be a technical  to fix situations where claims were being considered completely wanting jurisdictionally because the wrong person had signed and so the purpose of these this approach is to allow the correct person to step in and and certify claim after the contract officers entered the final decision and it's before a board of contract appeals so i agree with you that that's an important point that you have someone who's actually on the hook for the contract or  the the idea here is to allow that kind of correction to prove later whereas is it fair to say that as you've stated here today you have not defended the board's opinion to the extent that it held that only technical defects qualify for defective certification yes your honor because i think that that approach is looking at a different it stinks between technical and the sort of grossly negligent writing of the reasons why any attempted certification was found to be defective and we would say that under any analysis the ai certification letter at age twenty nine of the pentagon is an attempted certification and  with regard to the various c d a elements that the government counsel was talking about the the d i y letter meets those because it says it says in a sense we are invoking the contract disputes act it says these sponsored claims are submitted in organs with the contract disputes now that's not the magic language that's not perfect but it is certainly defective in the sense that it didn't have every single word of the contract disputes act so it didn't meet the formal acquirements but it was an attempt to me and then they said there was a sound basis for these claims and when they said that they were talking about the trans america case in the turner case that says that a prime contractor should have good grounds for relying on a subcontractors certification and so they were trying to take advantage of that the the august letter the nd letter that they submitted we agree that there's virtually no daylight between the two letters and if you look at at that letter it was in response to the contracting officer statement that said you never submitted any certification and that's critical and that's an appendix one hundred and twenty two dollars in response today i's letter the contracting officer said you never submitted a prime contractor certification all we have is the sub contractors are counsel they were relying on the trans america case which allows a a prime contractor to sponsor subcontractor claim as long as they have good grounds and that's what they were trying to accomplish and one other point  work maybe losing sight of is that the in the date the government's protected because the contractor files the claim they want to get paid but the statute and i think congress congress may have been ingenious in coming up with this basically to say t contractor you will never get paid unless you properly certify because the nine hundred and ninety two amendment says right entry of a final judgment by a quarter board the quarter board shall require a defective certification to be corrected so that this idea that there mr shaper even if we were to side with you and consider this to be a defective certification that was deemed denied we then just reversed merman for the consideration of the merits of the claims were not resolving these claims here at the end of the day even if we move up we're told every penny of our costs still the contractor does not get paid they can go to the judgment fine they can get a judgment from the board until they have a proper certification so this will be fixed and i think that's what congress had in mind that the contracting officer would tell the contractor ok we have to cut you off you're well beyond your time mr speaker i think but also for their argument was very helpful the court will take this case anderson mission