ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) RECO Rishad Engineering Construction ORG ) ASBCA No. 60444 ) Under ContractNo. W91B4M-07-C-7228 ) APPEARANCE FOR THE APPELLANT: Mr. Burhan Jan CEO and President APPEARANCES FORTHE GOVERNMENT: Raymond M. Saunders, Esq. Army ChiefTrial Attorney MAJ Julie A. Glascott, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION RECO Rishad Engineering Construction ORG (RECO or appellant) appeals under the ContractDisputes Act (CDA), 41 U.S.C. §§ 7101-7109, from a contracting officer's final decision (COFD) denying its 16 January 2016 claim in the amount of$228,838. The Board, 

### sua sponte, directed the parties to address whetherthe 16 January 2016 claim was properly certified. In lieu ofabrief, the government filed a motion to dismiss the appeal for lack of jurisdiction. We grant the motion to dismiss the appeal. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. On 29 September 2007, Purchasing and Contracting, AF-MMTT Camp Phoenix (the government) awarded ContractNo. W91B4M-07-C-7228 (the contract) to RECO for construction ofnew brick and mortarbuildings at FOB Zerok, Khowst Province, Afghanistan (R4, tab 3 at 1-5). 1 2. On 17 January 2013, RECO sent an email to a contract specialist at Army Contracting Command

- Rock Island, Reachback Closeout Division

- CCRC-RC. Attached to the email was a letter dated 18 January 2013 entitled "Issue Regarding to Incomplete Project ofFOB Zerok." The letter indicated that RECO had allegedly completed 90% ofthe workunderthe contractbut had only been paid for 50% ofthe work and sought the remaining "40%payment that we spent on FOB Zerok contract." No dollar amount and no certification was included in the letter. (R4, tab 20 at 1-2, 5)

1Forthe purposes ofidentifying references to the record, we adoptthe sequential pagination affixed by theparties to the Rule 4 file documents.3. The contract specialistresponded and requested that RECO provide an invoice and either a DD250 or otherproofofperformance (R4, tab 21). 4. By email dated 20 January 2013, RECO providedthe contract specialist with somepictures ofthe project and some copies ofinvoices. The contract specialist replied by email on 4 February 2013 and stated that RECO had notprovided sufficient proofof performance. (R4, tab 26) 5. RECO filed a notice ofappeal under the contract, which the Board docketed as ASBCA No. 60156 on 4 September 2015. On 2 February 2016, the Board dismissed the appeal withoutprejudice to the contractor's submittal ofa claim to the contracting officer (CO). RECORishadEngineering Construction ORG, ASBCANo. 60156, slip op. at 1 (2 Feb. 2016). 6. By email dated 16 January 2016, RECO submitted a document entitled "Certified Claim Letter" to the CO. The letter stated, in part: Ithas been few years we are seeking ourmoney which is still with US Government, and we claim for that amount, and we respectful request the US Governmentpleasepay our 40%which is $228,838.

I Certify that the claim is made in good faith; that the supportingdata are accurate andcomplete to the bestof my knowledge andbelief; that the amount requestedaccurately reflects the adjustment for which the we believes the Government is liable; andthatIam authorizedto certify the claim on the behalf of the our company.

Sincerely Mr. BurhanJan CEO and President ofcompany Reco Rishad Engineering Construction ORO SherPoor, ST# 4 WazeerAkbar Khan, Kabul, Afghanistan (R4, tab 29 at 3) (Syntax and spelling in original) No handwriting or electronic signature appears onthe letter.

27. The CO issued a COFD by letter dated 9 February 2016 denying RECO's request for payment (R4, tab 30). 8. RECO appealed the COFD to the Board by email dated 10 February 2016. We docketed the appeal as ASBCA No. 60444 on 12 February 2016. 9. By Board order dated 24 August 2016, the Board directed the parties to briefthe issue ofwhether appellant had submitted a properly certified claim to the CO. 10. In response to the Board's order, the government filed a motion, dated 8 September2016, to dismiss the appeal for lack ofsubject matterjurisdictionbecause appellant did not properly certify its claim (gov'tmot. at 1 ). 11. In response to the government's motion to dismiss, RECO sent an email, addressed to government counsel and on which the Board was copied, on 8 September 2016. It stated: As you know my company has no experinces ofthe claim before, that is why we forget to enclude the signe on our file, please find attached certified and signed claimperASBCA standard or official, which has our demand, and certification, please accept our file andplease make decision on it[.] (Bd. corr. file, email dtd. 8 September 2016) (Syntax and spelling in original) Attached to the email was a copy ofthe certified claim letter. In the signature blockthere appears to be ahandwritten signature.2 DISCUSSION Ourjurisdiction over an appeal involving a contractor claim depends, interalia, on the prior submission ofaproper claim to a CO for decision. 41 U.S.C. 

### § 7103; see also LaelAlSahab & Co., ASBCA No. 58346, 13 BCA

### ,-i 35,394 at 173,662. For claims of more than $100,000, the CDA requires that a contractor certify that:

2 The Board expresses no opinion as to whether RECO's 8 September 2016 email to government counsel satisfies the CDA's requirement that a claimbe submitted to the contracting officer. See Neal & Co. v. UnitedStates, 945 F.2d 385, 388 (Fed. Cir. 1991), Dawco Construction, Inc. v. UnitedStates, 930 F.2d 872, 880 (Fed. Cir. 1991), National Gypsum Co., ASBCA No. 53259, 01-2 BCA

### ,-i 31,532 at 155,673; see also J. LeonardSpodek, Nationwide PostalManagement, PSBCA No. 4265, 99-1 BCA

### ,-i 30,174 at 149,301. Therecord is silent on whetherthe contracting officerhas received appellant's 8 September 2016 email.

3(A) [T]he claim is made in good faith; (B) the supporting data are accurate and complete to the best ofthe contractor's knowledge and belief; (C) the amount requested accurately reflects the contract adjustment for which the contractorbelieves the Federal Government is liable; and (D) the certifier is authorized to certify the claim on behalf ofthe contractor. 41 U.S.C. § 7103(b). When required, certification ofthe claim is a prerequisite to this Board'sjurisdiction. E.g.,AlRafideen Company, ASBCA No. 59156, 15-1 BCA iJ 35,983 at 175,809. "Thecertification may be executedby any person duly authorized to bindthe contractor with respect to the claim." FAR 33.207(e). Proper execution requires the certifierto signthe certification. Tokyo Company, ASBCA No. 59059, 14-1BCAiJ35,590 at 174,391; Teknocrafl Inc., ASBCA No. 55438, 08-1BCAiJ33,846 at 167,504; Hawaii CyberSpace, ASBCA No. 54065, 04-1BCAiJ32,455 at 160,535. We apply the definition of"signature or signed" in FAR2.101 to ascertain whether a CDA certification was properly executed. Teknocrafl, 08-1 BCAii 33,846 at 167,504. FAR2.101 states, "Signature orsignedmeans the discrete, verifiable symbol ofan individual which, when affixed to a writing with the knowledge and consent ofthe individual, indicates a present intention to authenticate the writing. This includes electronic symbols." We have held that a typed butunsigned name, where an electronic signature is not involved, is not sufficiently discrete, definitive orverifiable to serve as a signature compliant with that definition. Tokyo Company, 14-1 BCAii 35,590 at 174,392. As appellant's claim for $228,838 is greaterthan $100,000, it required certification. See 41 U.S.C. 

### § 7103(b). Only appellant's certified claim letter, submitted to the CO on 16 January 2016, included certification language (SOF iii! 2, 6). However, the certification included in the letter is unsigned. The signature blockbears only the typed name of Mr. BurhanJan without a handwritten or electronic signature appearing on the letter. (SOF ii 6) The typed name may not serve as a signature because it is not sufficiently discrete orverifiable. See Tokyo Company, 14-1BCAii35,590 at 174,392. We conclude that appellant failed to submit a certified claim to the COprior to filing this appeal. RECO's 8 September2016 email and resubmission ofthe letterwith a handwritten signature afterthe filing ofthe appeal cannot correct appellant's pre-appeal failure to certify its claim. (See SOF ii 11) While certain defects in the certification may be corrected and do not deprive the Board of jurisdiction over a claim, it is well established that the complete lack ofa signature on a certification is not a defect that can be cured. E.g., Tokyo Company, 14-1BCAii35,590 at 174,392; Teknocrafl, 08-1BCAiJ33,846 at 167,505; Hawaii CyberSpace, 04-1 BCAii 32,455 at 160,535.

4Appellant cannot correct its failure to sign the certification ofits 16 January 2016 certified claim letter afterthe filing ofthis appeal. Appellant's failure to submit a properly certified claim to the CO prior to filing this appeal deprives the Board of jurisdiction over the appeal. CONCLUSION The government's motion to dismiss for lack of jurisdiction is granted. This appeal is dismissed withoutprejudice to RECO's submission ofa properly certified claim to the CO. Dated: 10 November 2016

I concur

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# -~~/.4<>V?:tCrtb: ;;>MARK N. STEMPLER 

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Administrative Judge Acting Chairman Armed Services Board ofContractAppeals ROf3ElCTUEACOCK Administrative Judge Armed Services Board ofContract Appeals

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 60444, Appeal ofRECORishad Engineering Construction ORG, rendered in conformance with the Board's Charter. Dated:

5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals