ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of

-- ) ) Wright Brothers, the Building Company, )

Eagle LLC ) ) )

APPEARANCE FOR THE APPELLANT: Samuel A. Diddle, Esq.

Eberle , Berlin, Kading, Turnbow &

McKlveen, Chtd. Boise, ID

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Lori R. Shapiro, Esq.

Trial Attorney

OPINION BY ADMINISTRATIVE JUD GE STINSO N ON THE

GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURIDICTION

Appellant, Wright Brothers, The Building Company, Eagle LLC (Wright

Brothers ), appeals a contracting officer’s September 27, 2019 , final decision denying, in part, appellant’s claim seeking an equitab le adjustment for alleged government delay costs in the amount of $ 753,816.77 (R4, tab s 98 , 109 ). The government filed a motion to dismiss the appeal for lack of subject matter jurisdiction, alleging that appellant failed to properly certify its claim as required by the Contract Disputes Act (CDA) , 41 U.S.C. §§ 7101

- 7109. For the reasons stated below, we deny the g overnment’s motion.

STATEMENT OF FACTS (SO F ) FOR PURPOSES OF THE MOTION

1. On September 26, 2014, the government awarded Wright Brothers Con tract

No. FA4528

- 14

- C

- 3001 in the amount of $3,791,573.00

, for the repair and renovation of Building 1113WSA located at Minot Air Force Base

, in Minot, North Dakota (R4, tab 9). The notice to proceed was issued on November 14, 2014 ( R4, tab 24 ). The original contract period was 365 days

, to commence upon issuance of the notice to proceed ( R4,

tab 9 at 1 )

. Bilateral Modification No. P00011 extended t he contract performance period

to September 3, 201 7 ( R4, tab 20 ).

2. Wright Brothers submitted to t he contracting officer a letter from its counsel dated May 30, 2019, seeking a “final equitable adjustment” for alleged ASBCA No. 62285

Under Contract No. FA4528

- 14

- C

- 30012 government

- caused delays

. The letter referenced a “request for an equitable adjustment

which has been referred to as COR 020.” The let ter stated that appellant “is submitting its claim in an effort to bring closure to this project through mutual agreement and to avoid adversarial adjudication of a claim.” The letter also referenced a “final Change Order Request . . . itemized on COR020 dated May 28, 2019” and “a prior version of COR 020 dated September 27, 2018 .” (R4, tab 98 at 1

- 2 ) Included with the letter as an attachment was a cost breakdown for COR 020, also dated May 28, 2019, seeking a change order in the total amount of $ 753,816.77 (R4, tab 98c at 2). Also i ncluded with

the letter as an attachment was a certification stating :

I certify pursuant to 10 USC § 2410 that the claim set forth in COR 020 (revised March 29, 2019) and with its supporting records, is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which Wright Brothers, The Building Company LLC believes the Government is liable; a nd that I am duly authorized to certify the claim on behalf of Wright Brothers, The Building Company LLC.

Wright Brothers, The Building Company LLC.

By: __________________________________ Trevor Wright, Member and Principal

( R4, tab 98d ) 1

3. By emai l dated July 11, 2019, the contracting officer inquired from appellant as

follows:

My team is in the process of reviewing all of the documentation that was sent to my office on June 28th. Can you clarify if this is a Change Order Request, Request for Equ itable Adjustment, or Claim? The reason I ask is because

1 The copy of th is certification in the government appeal file submitted pursuant to Board

Rule 4 contains no signature of Mr. Wright (R4, tab 98d). Appellant alleges that the May 30, 2019, letter, “included a certification page fully compliant with

41 U.S.C. § 7103(b)(1)” (app. resp. at 2). Appellant submitted with its supplementa l appeal file a signed copy of a certification, identified in appellant’s

Rule 4 index as “Executed Certification included with COR020

, ” and a da te stated

in the index of May 31, 2019 ( app. supp. R4, tab 1; see “ Appellant’s Rule 4 Index

– Supplemental ” ).3 there was a claim certification in the paperwork, but it was not signed.

(R4, t ab 100)

4

. By letter dated July 12, 2019, appellant’s counsel stated:

I am responding to your email dated July 1 1, 2019 to Trevor Wright to confirm that the submission sent to you on May 30, 2019 represented a certified claim and request for contracting officer’s decision. The original certification transmitted under cover of my letter dated May 30, 2019 was

execu ted. I am providing you with another copy of that letter and certification which is the form prescribed by FAR 33.207(c) and executed by an authorized representative of Wright Brothers.

(R4, tab 101 at 2 )

5

. Appellant’s July 12, 2019 letter, included a copy of the May 30, 2019, letter (R4, tab 101 at 3). The July 12 th letter also included a certification with identical wording and formatting as the certification submitted with the May 30, 2019, letter

, signed by Mr. Wright (R4, tab 101 at 9)

. 2 The certif ication submitted with the July 12, 2019 letter, does not indicate the date Mr. Wright affixed his signature to the document.

6

. By letter dated July 30, 2019 , the contracting officer informed appellant :

In accor dance with FAR 33.21(c)(2)

– Contracting Officer’s Decision, this letter provides notice that a decision on the claim, referenced as COR020 in your counsel’s letter dated 30 May 2019 and initially received with defective certification on 31 May 2019, will be sent to you on

27 September 2019. This date is based on the size and complexity of the claim, and the adequacy of the contractor's supporting data.

2 Appellant’s response to the government’s motion to dismiss states that the certification sent with the July 12, 2019, letter, was “the identical certification page from the claim previously transmitted” (app. resp. at 3 (citing R4, t ab 101)). The government disagrees , stating “[d] espite WBTBC’s contention in its Response that a signed certification accompanied this submission, WBTBC produced no s igned

certification for this submission ” (gov’t reply at 2).4 (R4, tab 102 at 2) The contracting officer also informed appellant that the government

“would like to resolve the remaining items, detailed below, through mutual agreement, driven by discussion between the Contracting Officer and the Contractor” ( id .).

7. By letter dated August 20, 2019, appellant requested confirmation regarding the sufficiency of its c laim certification:

Initially I would like to confirm that any perceived deficiency in the May 31, 2019 certification was cured by virtue of my letter dated July 12, 2019. While we do not agree that the initial certification was in any way deficient, we would appreciate it if you would respond indicating that you no longer perceive Wright Brothers, The Building Company’s (“Wright Brothers”) certification is defective in any way.

(R4, tab 103 at 2 ) Appellant’s August 20, 2019, letter, also confirmed its interest in resolving certain items contained in the claim and provided additional information regarding those items ( R4, tab 103 at 2

- 7)

.

8 . On September 3, 2019 , the parties held a telephone conference in which the parties discussed the issue of whether appellant submitted a properly certified claim

. On September 5, 2019

, the contracting officer provided appellant with a memorandum stating, in part, “[a] s a follow

- up to my conversat ion with Mr. Samuel Diddle on

3 September 2019, the Government considers the claim to have been cured by the letter provided on 12 July 2019 .” The memorandum also stated its concurrence with amounts sought by appellant for Items 110 and 111 of its claim, and identified as remaining

unresolved

, I t ems 108(d) and (e)

, and 1 09. ( R4, t ab 104 )

9 . Appellant prepared a spreadsheet dated September 12, 2019, reflecting cost items contained in appellant’s claim that were resolved by the parties, in the amount of $ 241,257.67 (R4, tab 106).

1 0

. Bilateral Modification No. P00013, effective September 19, 2019, detailed the

resolved cost items from appellant’s claim, as follows:

The purpose of this modification is to:

A. Incorporate Items 101

- 107, 108A, 108B, 108C, 108F and

110

- 112 from COR 020.

B. Increase the contract amount by $241,257.67 (CLIN 0003) increasing the total contract value from $4,378,446.82 to $4,619,704.49.5 C. In consideration of the modification agreed to herein as complete equitable adjustments for the Contractor's COR 020 items, 101, 102, 103, 104, 105, 106, 107, 108A, 108B, 108C, 108F, 110, 111 and 112, the Contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to COR 020 items: 101, 102, 103, 104, 105, 106, 107, 108A, 108B, 108C, 108F, 110, 111 and

112.

(R4, tab 22 at 1

- 2)

1 1

. Appellant prepared a spreadsheet dated September 2 4 , 2019, reflecting remaining cost items contained in appellant’s claim that w ere not resolved by the parties

, in the amount of $ 455,693

. 14. Th e items that remained unresolved were Items 108(d) and (e)

, and 109. (R4, tab 108 )

1 2 . On September 27, 2019, the contracting officer issued a final decision stating, in part:

1. Wrigh t Brothers the Building Company (WB) has

submitted a claim for contract number FA4528

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- 3001, certified and received by the Government on 12 Jul 2019, in the amount of $753,816.77. Mutual agreement resulted in some items originally claimed being incorp orated into the contract by a modification for $241,257.67. The remaining confirmed amount after modification is $455,693.14.

. . . .

[3

. ]e. On 11 Jul 2019, the Government requested clarification by email whether COR 020 was a claim or request for

equ itable adjustment since the claim certification was not signed.

f. On 12 Jul 2019, the Government received a response from Eberle Berlin, that COR 020 was a claim and that the original certification was signed 30 May 2019. Eberle Berlin provided a signed copy with their response.

(R4, tab 109 at 2, 4)6 1 3

. On November 27, 2019, a ppellant filed its notice of appeal of the contracting officer’s final decision, stating, in part:

The monetary amount in controversy is $455,693.14 plus interest and attorney fees and costs to which Wright Brothers may be entitled under the Equal Access to Justice Act. Wright Brothers’ claim has been fully set forth in correspondence and emails dated May 30, 2019; July 12, 2019; August 2 0, 2019; and September 11, 2019.

( R4, tab 110 at 2)

DECISION

It is well established that “[t] he linchpin of the Board ’ s jurisdiction over a

contractor claim is the contractor ’ s submission of a proper claim to the CO for a

decision ” and that “[p] ursuant to the CDA, a contractor must submit a certification to the CO for any claim exceeding $100,000. ” Areyana Grp

. of Constr

. Co

. , ASBCA

No. 60649

, 18

- 1 BCA ¶ 37

, 192 at 181,056. The government has filed a m otion to dismiss appellant’s appeal for lack of jurisdiction, all eging improper claim certification (gov’t mot . at 1 ).

There is no dispute that the certification here met the CDA requirement of stating

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) (1); see also 48 C.F.R. § 33.207 (c) (setting forth certification language).

Although t he parties disagree whether the certification submitted with the May 30,

2 019, letter , was executed by Mr. Wright, t here is no dispute that a signed version of the certification was submitted to the government by letter dated July 12, 2019 ( SOF ¶ 5),7 and that certification met the CDA requirement of being “ executed by an individ ual authorized to bind the contractor with respect to the claim .” 41 U.S.C. § 7103(b)(2 ).

According to the government (gov’t mot. at 6), the certification’s alleged fatal

defect is its reference to appellant’s “ claim set forth in COR 020 (revised March 29, 2019) ” ( SOF ¶ 2). 3 According to the government, this defect resulted in “the complete

absence of a certification” that “cannot be corrected and is fatal to the Board’s jurisdiction” ( gov’t mot. at 6 ) (citing Kirlin Builders, LLC , ASBCA No. 61901 , 20

- 1 BCA ¶ 37,485). As support, t he government argues , “[t] here is no evidence in the record

d emonstrating that the certification corresponds to the May 30, 2019 claim ,” because the certification submitted by appellant ( see SOF ¶ ¶ 2, 5) references a dif ferent date, i.e., the

“ claim set forth in COR 020 (revised March 29, 2019) ,” not May 30, 2019 (gov’t mot.

at 6). Appellant disagrees , stating

, “the certification page specifically references COR020 and the record contains more than ample evidence ‘ demons trating ’ that the certification page corresponds to the M ay 30, 2019 claim

, ” of which it wa s a part (app. resp. at 4).

We agree with appellant. First, t he record establishes t hat appellant submitted to the government as an attachment to appellant’s May 30, 2019, letter, a CDA certification

that pertained to appellant’s claim , along with a cost breakdown of COR 020 , dated May 28, 2020 (SOF ¶ 2)

. Second, t he contracting officer sought clarification whe ther the May 30, 2019, letter

, was a claim, noting that “ there was a claim certification in the paperwork, but it was not signed ” ( SOF ¶ 3)

. Third, a ppellant’s July 12, 2019, letter

, confirmed appellant’s position that its May 30, 2019, letter

, was a clai m, and included a signed version of the claim certification , as well as a copy of the May 30, 2019, letter ( SOF ¶ ¶ 4

- 5). 4 Fourth, the contracting officer subsequently confirmed that “ the Government considers the claim to have been cured by the letter prov ided on 12 July

2019” (SOF ¶ 8). The government’s assertion that “ there is a complete absence of a CDA certification that deprives this Board of jurisdiction ” (gov’t mot. at 6), is simply

incorrect. 5

3 The record contains no evidence of, nor do the parties assert the existen ce of, a

March 29, 2019 claim or a March 29, 2019 version of COR 020 (gov’t mot. at 1 (citing R4, tab 98 at 2, which references “[t]he final Change Order Request . . . itemized on COR020 dated May 28, 2019” and “a prior version of COR 020 dated September 27, 2018”)).

4 D uring th e period of claim submission and consideration

, it appears neither party

a ddress ed the signifi cance or import of the reference to appellant’s “claim set forth in COR 020 (revised March 29, 2019)” in its certification (see SOF ¶ ¶ 6, 8 ) (discussing sufficiency of claim certification).

5 For purposes of deciding the government’s jurisdictional motion, w e need not de termine at this juncture whether the May 30, 2019, letter, was a properly certified claim, or whether the certification included with that letter as an attachment was properly8 The government cites our decision in Anwar Alsabah Co

. , ASBCA No. 59737

- 937

, 15

- 1 BCA ¶ 35,907

, as support for its argument that the certification here did not comply

with the CDA (gov’t reply at 4

- 5). In that appeal, the appellant filed a December 12, 2014 petition , requesting the Board order the contra cting officer to i ssue a final decision on appellant’s September 2010 payment request. The government argued that appellant had not submitted a properly

- certified claim to the contracting officer. The record contained a December 3, 2014, CDA certificatio n, dated just nine days prior to appellant’s petition to

the Board , which appellant proffered as its claim certification

. We dismissed the appeal for lack of jurisdiction based upon improper claim certification, holding that appellant failed to provide ev idence that it had provided the December 3, 2014, cer tification

, to the contracting officer with a payment request. Id . at 175,525. Here, it is undisputed that appellant submitted to the contracting officer a certi fication with it s May 30, 2019, letter (although the parties disagree whether that certification was signed) , and subsequently

submitted to the contracting officer a signed version of that certification

, along with a corresponding copy of the May 30, 2019, letter ( SOF ¶ ¶ 2, 4

- 5)

.

The govern ment argues

, “[t]he fact that the contracting officer issued a final decision cannot remedy the lack of a certification as subject matter jurisdiction cannot be conferred by the parties” (gov’t mot. at 6). We agree that a contracting officer has “ no autho rity to waive a requirement that Congress imposed.” Paul E. Lehman, Inc. v.

United States , 230 Ct. Cl. 11, 17, 673 F.2d 352, 356 (1982). However, to determine

whether appellant submitted a certification with i t s claim here, we do not look to, or rely

upo n, the fact that the contracting officer issued a final decision on appellant’s claim. Rather, we look to the surrounding circumstances, including the correspondence between the parties, which make clear that the cer tification applied to the claim ( SOF ¶ ¶ 6, 8). Consistent with our finding, it is not surprising that t he record reflects that both parties

believed

, during the claim submission process

, that appellant had certificated its claim ( SOF ¶ ¶ 4

- 8).

The government also suggest s that appell ant’s claim certification was lacking because appellant submitted uncertified updates to its claim prior to issuance of the final decision (gov’t reply at 1 n.1). The record establishes, however, that these updates were the result of negotiations between the parties that ultimately reduced

, through compromise

, the amount sought by appellant, thereby reducing the amount in controversy

executed, as it is undisputed that appellant submitted to the contracting officer a signed version of its certification on July 12, 2019, and ultimately satisfi ed the government’s concerns whether appellant had submitted a properly certified claim ( SOF ¶ ¶ 3

- 8). This f actual issue could require resolution, however, i n the event appellant ultimate ly prevails in this appeal, as it w ould bear upon the date the contracting officer received appellant’s claim , which is relevant for p urposes of determining CDA interest. 41 U. S.C. § 7109(a)

.9 from $753,816.77 to $455,693.14 ( SOF ¶ ¶ 6

- 12). As noted by appellant, “the items identified on revised spreadsheets as rema ining in dispute are the same as the items in the May 30, 2019 claim” (app. resp. at 11). These updates to appellant’s claim did not require any additional certification. Tom Shaw, Inc. , ASBCA No. 28596 et al. , 95

- 1 BCA ¶ 27,457 at 136,774, aff'd on reco nsid ., 96

- 1 BCA ¶ 28,007 ( “ appellant ’ s claim revisions constituted an attempt at accuracy, with dollars claimed for specific items both increasing and decreasing

. At all times, the underlying claim allegations remained the

same and the cost modifications did not constitute new claims requirin g additional certification”).

T he government requests that, “[i] n the event the Board finds the c ertification is merely defective, ” t he Board require appellant to “ provide a co rrected certification within

14 days of the Board’s Order ” (gov’t mot

. at 1). In so requesting, t he government recognizes that “[a] defective certification does not deprive the Board of jurisdiction over a claim” (gov’t mot. at 6 ) (citing 41 U.S.C. § 7103(b) and (c); DAI Global v. Adm ’ r of the United States Agency for Int’l Dev

. , 945 F.3d 1196, 1198 (Fed. Cir. 2019) )

. Section 7103(b)(3) of

the CDA states :

A defect in the certification of a claim does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a

defective certification to be corrected.

41 U.S.C. § 7103(b)( 3 )

.

The Federal Acquisition Regulation ( FAR ) defines d efective certification as “ a certificate which alters or otherwise deviates from the language in 33.207(c) or which is not executed by a person authorized to bind the contractor with respect to the claim. ”

48 C.F.R. § 33.201

. FAR 33.207(c) provides:

The certification shall state as follows:

I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor

believes th e Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.

48 C.F.R. § 33.20 7(c)

.10 We note that the CDA contains no explicit requirement that a certification include

the date it i s signed. However, “[t]he cert ification should speak as of the time of its submission to the contracting officer, and not as of some prior date.” Loral Fairchild Corp

., ASBCA No. 45719

, 95

- 1 BCA ¶ 27

, 425 at 136,682. In Loral Fairchild , we held

that a misdated certification was defect ive, stating:

Appellant’s second certification accompanied its claim resubmitted on 21 April 1992 (finding 12). The entry of

“4 December 1990” following the text of the certification rendered the certification defective by causing the

certification not t o apply to the claim as submitted in April

1992. Hence, in that sense it was a “defective certification.”

Id

. We likewise held , however, that the defective certification was cor rectable

. Id

.

As noted above, the alleged certification defect here is appellant’s reference to the “claim set forth in COR 020 (revised March 29, 2019)” (SOF ¶ 2). Section 7103(b)(1) of the CDA and section 33.207(c) of the FAR both are explicit as to the required certification language. Appellant included language not requ ired or specified in the CDA

or the FAR when it referenced “ the claim set forth in COR 020 (revised March 29, 2019)” as an identifier for COR 020. The result was confusion as to what specifically appellant was referencing, albeit confusion that arose only after the advent of this litigation. In the context of this appeal, in addition to constituting language not required by statute or regulation, th e certification included reference to a n identifier for COR 020 that app arently had no connection to the claim actually being certified. To that extent, given the confusion it s o wed, it warrants correction.

The certification here also includes the stat ement that it is made “ pursuant to
10 USC § 2410 ” ( SOF ¶ ¶ 2, 5). That statute, however, concerns not CDA claim certification, but rather certification of requests for equitable adjustment. Kirlin Builders,

20

- 1 BCA at 182,07 1. Neither party addresses th e significance or import of appellant’s

reference to section 2410 in the certification.

To the extent a ppellant’s reference to “the claim set forth in COR 020 (revised March 29, 2019)”

, and 1 0 U.S.C. § 2410 , “ alters or otherwise deviates from the language in 33.207(c)

, ” th ose “ defects ” can be cured. 48 C.F.R. § 33.201 ; 41 U.S.C. § 7103(b)(3). Accordingly, appellant is O RDERED to correct the defects in its certification as soon as is practical, but certainly prior to any decision on the merits entered by the Board i n this appeal , as required by 41 U.S.C. § 7103(b)(3).11 CONCLUSION

We possess jurisdiction to consider Wright Brothers’ appeal of the contracting

officer’s final decision. The government’s motion to dismiss for lack of jurisdicti on is

denied

. Appellant shall timely submit to the Board a corrected certification conforming

to the requirements of 41 U.S.C. § 7103(b) and 48 C.F.R. § 33.207(c) , as discussed

above.

Dated: October 8

, 2020

DAVID B. STINSON Administrative Judge

Armed Services Board of Contract Appeals

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman

Armed Services Board of Contract Appeals I concur

J. R EID P ROUTY

A dministrative Judge

Vice Chairman

Armed Services Board of Contract Appeals12 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. 62285

, Appeal of Wright Brothers, the Building Company, Eagle LLC , rendered in conformance with the Board’s

Charter.

Dated: October 13, 2020

PAULLA K. GATES

- LEWIS Recorder, Armed Services Board of Contract Appeals