ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

PHA-JMR JV ) ASBCA No. 59032 

) 

Under Contract No. F A4686-l O-C-0018 ) 

APPEARANCES FOR THE APPELLANT: Martin R. Salzman, Esq. 

Kevin S. Dale, Esq. 

David M. Gersh, Esq. 

Hendrick Phillips Salzman & Flatt, P.C. 

Atlanta, GA 

APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF 

Acting Air Force Chief Trial Attorney 

Christopher M. McNulty, Esq. 

Capt Eric J. Singley, USAF 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE JAMES 

ON JURISDICTION 

On 25 February 2014, the Board, sua sponte, asked the parties to briefthe 

question whether the 30 April 2013 Contract Disputes Act (CDA) certification signed by 

Scott Manning, treasurer of subcontractor Progressive Roofing as "Attorney-in-fact for 

JMR," one of the PHA-JMRjoint venturers, by a limited power of attorney that expired 

on 31 January 2013, was a valid CDA certification. Both parties submitted briefs. At the 

parties' request, the Board also heard oral argument. Upon review of the parties' briefs, 

attached exhibits and the transcript of the oral argument, we refocus the question as 

follows: whether either appellant's 25 January 2013 claim or 30 April 2013 claim is 

within the CDA jurisdiction of this Board. 

STATEMENT OF FACTS (SOF) 

I. On 11 August 2010, the U.S. Air Force 9th Contracting Squadron entered into 

Contract No. FA4686-10-C-0018 (the contract) with PHA-JMR JV to construct roof 

sections A and B for Building No. 1086 at Beale Air Force Base, California (R4, tab 1 

at 1-3). 

2. For PHA-JMR JV, "PHILIP L. HA WK.INS, MANAGING PARTNER" 

signed the contract and its bilateral Modification Nos. P00002, P00003 and P00004 

(R4, tabs 1, 3-5). 
3. "JMR" subcontracted with Progressive Services, Inc. (Progressive) for a 

portion of the contract roofing work, including demolition (Salzman aff., ex. 1 at 1 ). As 

our following Statement of Facts demonstrate, there are many confusing aspects of this 

appeal. We place "JMR" in quotes for the following reasons, and note that neither the 

Progressive subcontract nor the Joint Venture agreement is in evidence. The "JMR" 

citation is to appellant's undated initial "claim" letter (see SOF if 8). The "claim" is on 

the subcontractor's letterhead and is signed by the subcontractor's treasurer. While it is 

denominated as PHA-JMR JV's claim, the body of the letter stated: "Please accept the 

letter as PHA-JMR's (' JMR') certified claim submission and request for a final 

Contracting Officer's decision on behalf of its subcontractor, Progressive Services, Inc. 

d/b/a Progressive Roofing." It is unclear in the record what appellant intended by its 

parenthetical ("JMR") in this sentence. In various documents sometimes PHA-JMR JV 

is used to refer to the contractor and appellant in this appeal, and sometimes JMR is 

used. Of course, JMR is only one of the JV partners and not the contractor itself. 

4. On 1 November 2010, during the initial roof demolition, Progressive's "Roof 

Warrior" cutting device struck several metal plates atop the concrete deck underlying the 

existing roofing. Progressive notified the government of this discovery on the next day. 

(Salzman aff., ex. 1 at 2, exs. IA, lB) 

5. PHA-JMR JV's Request for Information 003 (RFI #3) dated 10 November 

2010 was authored by John Morrill of JMR, who provided further information to the 

government regarding the alleged differing site condition (Salzman aff., ex. lE). 

6. On 3 June 2011 Progressive sent JMR a $57,210.00 change request consisting 

of$51,080 for labor and $6,130 for "Overhead & Profit@ 12%" relating to the metal 

plates (supp. R4, tab 10 at 4of9). 

7. The 16 June 2011 letter of JMR's John Morrill to contracting officer 

(CO) Pank, on PHA-JMR JV letterhead, forwarded Progressive's 3 June $57,210.00 

request, to which was added "MIU $8,582.00" ("Profit overhead=@ 15%") and "Bond 

$1,144.00" for a total of$66,936.00 (supp. R4, tab 10 at 2-3 of9). 

8. The undated letter to CO Pank on the letterhead of Progressive Roofing, signed 

by Scott Manning, submitted a $240,767 equitable adjustment for "Unforeseen Site 

Conditions," for the metal plates, and requested a CO's final decision. The $240,767 

adjustment included the $66,936 requested by Progressive and JMR on 16 June 2011 and 

added "extended overhead in the sum of at least $173,831.00 for which }MR/Progressive 

is entitled to be reimbursed" (emphasis added). (Salzman aff., ex. 1 at 1-2) We find that 

PHA-JMR JV or JMR added "$8,582.00" (for profit and overhead at 15%), "Bond 

$1,144.00" and "$173,831.00" in extended overhead costs, to Progressive's $57,210 

claim that included $6, 13 0 for "Overhead & Profit @ 12 %. " 

2 
9. Accompanying Progressive's letter were two documents each entitled 

"CONTRACTOR'S CERTIFICATION." The first was on plain bond, whose text 

complied with FAR 33.207(c) and was signed by "Scott Manning, Attorney-in-fact for 

JMR." The second was on Progressive letterhead, signed by "Scott Manning, Treasurer," 

its text was the same as the other certification. (Salzman aff., ex. 1 at 1, 5-7) 

Mr. Salzman mailed the foregoing "written certified claim ... to the [CO] on behalf of 

Appellant on or about January 25, 2013" (Salzman aff. at 1). 

10. On 13 March 2013 CO Sandra Siiberg rejected the claim because it did not 

appear to originate from the prime contractor, PHA-JMR JV, but was presented on a 

subcontractor's letterhead, and the claim certifier "is variously represented as either the 

apparent claim author ... designated attorney for a partial component (JMR) of the prime 

contractor PHA-JMR JV (with no firm letterhead representation), or, a principal 

(treasurer) of the ... subcontractor" (Salzman aff., ex. 2). 

11. The 30 April 2013 letter of "PHA-JMR JV ('JMR')" to CO Siiberg repeated 

the statements and included the "CONTRACTOR'S CERTIFICATION" signed by 

"Scott Manning, Attorney-in-fact for JMR" in its January 2013 claim letter, and 

appended the following: 

LIMITED POWER OF ATTORNEY 

KNOW ALL MEN BY THESE PRESENTS: 

JMR Construction Corp .... pursuant to a separate Joint 

Prosecution agreement, JMR is. pursuing the claims of 

Progressive Services, Inc .... ("Progressive") against the 

Project Owner pertaining to a differing site condition alleged 

by Progressive pertaining to roofing removal and replacement 

in connection with ... the Air Force Contract for Repair Roof, 

Flightline Support, B 1086 at Beale AFB, California.... In 

connection with the pursuit of the said claims, the Contract 

Disputes Act requires a Contractor Certification that the 

claims are made in good faith, that the supporting data is 

accurate and complete to the best of the contractor's 

knowledge and belief, and that the amount requested 

accurately reflects the contract adjustment for which the 

contractor believes the Government is liable. JMR does not 

have sufficient or personal knowledge, particularly as to 

Progressive' s supporting data, to execute such a certification. 

3 
Scott Manning, Treasurer for Progressive, does possess such 

knowledge. 

Accordingly, the undersigned hereby names, 

nominates and appoints Scott Manning .. .in JMR's name, 

place and stead, to sign its name and execute on its behalf the 

Contractor's Certification. The undersigned does hereby 

consent to, ratify and confirm everything which the said 

attorney-in-fact, pursuant to the powers herein contained, 

shall legally do by virtue of these presents. 

This Limited Power of Attorney shall not be affected 

by any disability and shall expire January 31, 2013. 

IN WITNESS WHEREOF, the undersigned have 

hereunto executed this document on this 21st day of 

December, 2012. 

JMR Construction Corp. 

JoAnne [illegible] By: Ron [illegible] 

Witness Its: Vice President 

(Gov't resp., attach. 1 at 8 of 8) 

12. CO Siiberg denied PHA-JMR's 30 April 2013 claim on 26 August 2013. 

PHA-JMR timely appealed from that decision on 22 November 2013. 

Contentions of the Parties 

Appellant argues that once the appeal record added the Limited Power of 

Attorney appointing Scott Manning as attorney-in-fact on behalf of JMR to certify 

PHA-JMR N's claim, PHA-JMR N's January 2013 "written certified claim" met all 

the statutory requirements. The 31 January 2013 expiration of such power of attorney 

did not impair the validity of its January 2013 certification. If appellant's January 2013 

certification was defective, it is correctible pursuant to the amended CDA. (App. 

br. at 1-3, 5-7; tr. 6-10) Respondent argues that appellant ignores a fatal defect in its 

January 2013 certification: court and board decisions precluding delegation to a 

subcontractor of the prime contractor's authority to execute the prime contractor's CDA 

certification. An updated limited power of attorney for Mr. Manning to correct a defect 

is futile, because his power of attorney is invalid. (Gov't resp. at 1-6, attach. 3 at 6; 

tr. 25, 27-29) 

4 
DECISION 

We first identify the pertinent statutory, regulatory and decisional requirements and 

rules for submitting a CDA claim. 

For a contractor claim the CDA requires that: (1) the 

contractor must submit the demand in writing to the CO, (2) 

the contractor must submit the demand as a matter of right, 

and (3) the demand must contain a sum certain. HL. Smith, 

Inc. v. Dalton, 49 F .3d 1563, 1565 (Fed. Cir. 1995). The 

claim must request, expressly or implicitly, a final decision of 

the CO, who must issue a decision thereon, or fail to decide 

the claim within the prescribed time. See James M Ellett 

Construction Co. v. United States, 93 F.3d 1537, 1542-43 n.4 

(Fed. Cir. 1996). If the contractor's claim exceeds $100,000, 

it must be certified. See 41 U.S.C. § 7103(b)(l). 

ERKA Construction Co., ASBCA No. 57618, 12-2 BCA ii 35,129 at 172,473-74. 

The requirement for a "sum certain" is not in the CDA but is in the FAR § 2.101 

definition of a "claim" as "a written demand or written assertion by one of the contracting 

parties seeking, as a matter of right, the payment of money in a sum certain." See 

Rejlectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (applying the FAR 

definition of "claim"); see also Precision Standard, Inc., ASBCA No. 55865, 11-1 BCA 

ii 34,669 at 170,788-89 ("at least $151,749.06" is not a sum certain because "the 

contractor's use of qualifying language leaves the door open for the request of more 

money on the same basis," so appeal dismissed for lack of CDAjurisdiction). 

On 11August2011, when the contract was awarded to PHA-JMR JV, the CDA 

provided in 41 U.S.C. § 7103(b): 

(b) Certification of claims.-

( l) Requirements generally.-For claims of more than 

$100,000 made by a contractor, the contractor shall certify 

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 ac.curately 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. 

5 
(2) Who may execute certification.-The certification 

required by paragraph ( 1) may be executed by an individual 

authorized to bind the contractor with respect to the claim. 

(3) Failure to certify or defective certification .... 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. 

We conclude that appellant's January and April 2013 claims are not proper CDA 

claims for three reasons. 

First, appellant's claims demanded "at least $173,831.00" for extended overhead 

costs added to Progressive's $57,210 subcontractor claim (SOF ii 8). See Precision 

Standard, 11-1 BCA ii 34,669 at 170,788-89 (amount qualified by "at least" is not a sum 

certain); JP. Donovan Construction, Inc., ASBCA No. 55335, 10-2 BCA ii 34,509 at 

170,171, ajf'd, JP. Donovan Construction, Inc. v. Mabus, 469 F. App'x 903 (Fed. Cir. 

2012) ($559,764 subcontractor claim was a sum certain, however, appeal was dismissed 

for lack of jurisdiction due to the qualification "approximately $65,000" of prime's added 

claim costs). 

Second, signing the PHA-JMR JV claims, as distinguished from signing the 

claim certification, was not within Mr. Manning's limited power of attorney (SOF ii 11 ). 

Mr. Manning's limited power of attorney was issued by JMR, not by PHA-JMR JV. 

The third reason requires a brief summary of the pertinent rules regarding joint 

venture claims, which are stated in WorleyPdrsons International, Inc., ASBCA 

No. 57930, 14-1 BCA ii 35,482 at 173,959-60 (government claim against one JV "partner" 

dismissed for lack of jurisdiction): 

A joint venture is an association of partners established 

by contract to carry out a single business activity for joint 

profit. It is essentially a partnership created for a limited 

purpose. Sade/mi Joint Venture v. Dalton, 5 F.3d 510, 513 

(Fed. Cir. 1993). Typically, ajoint venture has an 

independent existence from its partners. See Pine Prods. 

Corp. v. United States, 945 F.2d 1555, 1560 (Fed. Cir. 1991). 

Thus, when the government contracts with a joint venture, the 

joint venture is the entity with whom the government is in 

privity of contract, not its partners. Brother's Cleaning Serv., 

Inc. v. United States, 38 Fed. Cl. 106, 108 (1997); see also 

Pine Prods. 945 F .2d at 1561. Contrary to its contention here, 

6 
the government has historically opposed efforts by joint 

venture partners to claim independent privity on their joint 

ventures' government contracts, and attempts by partners to 

assert claims in their own names upon such contracts have 

been dismissed. 

See Wackenhut International, Inc. v. Department of State, CBCA No. 1235, 09-2 BCA 

-,r 34,255 at 169,260 (appeal dismissed when one venturer sought to pursue a claim in its 

own right, rather than by the JV); Bellinco, Inc. and A-1 Construction Co., Inc. d/b/al A-1 

Bellinco, Inc. v. Babbitt, 1996 U.S. App. LEXIS 31362 (Fed. Cir. 1996) (JV agreement 

provided for a two member committee, Bell and Roberts, but was silent as to whether one 

member alone could bind or act for the JV; court affirmed Board's dismissal of appeal by 

Bell alone for lack of jurisdiction); Kiewit/Tulsa-Houston v. United States, 981 F .2d 531, 

534-45 (Fed. Cir. 1992) (without an express delegation by both venturers, the managing 

party's general manager lacked authority to bind the JV and so his claim certification was 

inadequate). 

An exception to the foregoing rule arises when a joint venture agreement expressly 

authorizes one venturer or partner to assert a claim against the government and to execute 

a CDA certification on behalf of the JV. E.g., Newberg-Brinderson, ASBCA No. 44845, 

94-3 BCA -,r 27,095 at 135,009 (Dale Gold, vice-president of Newberg, the "Managing 

Venturer," and authorized by both venturers to execute "all other documents ... necessary 

... to perform and complete construction contracts" had authority to sign the claim 

certification); Stradedile/Aegis Joint Venture, ASBCA No. 39818, 95-1BCA-,r27,397 at 

136,587-88 (the presidents of both co-venturers signed the CDA certification of the JV's 

claim, though not expressly so authorized by the JV agreement; government's motion to 

dismiss for lack of jurisdiction denied). This exception is not applicable here. 

Applying the foregoing JV rules to this dispute, JMR's vice president executed 

Mr. Manning's limited power of attorney on behalf of JMR (SOF -,r 11 ). There is no 

evidence, such as the PHA-JMR JV joint venture agreement, that JMR was authorized to 

execute a power of attorney on behalf of the PHA-JMR JV or for Mr. Manning to sign 

PHA-JMR JV's claim (SOF -,r-,r 3, 11 ). And in fact the limited power of attorney does not 

mention the joint venture or the joint venture's claim that is in addition to Progressive's 

claimed amount. For the foregoing reasons, we hold that appellant has not submitted a 

valid CDA claim. Therefore, we need not decide whether a subcontractor's treasurer can 

be authorized to execute a CDA certification pursuant to a limited power of attorney 

signed by one of the two venturers of PHA-JMR JV. 

7 
CONCLUSION 

We dismiss the appeal for lack of jurisdiction, without prejudice to appellant's right 

to submit a compliant CDA claim to the CO. We encourage PHA-JMR JV (the contractor) 

to pay particular attention to who is signing claims and certifications, and in what capacity 

they are signing. 

Dated: 1August2014 

Armed Services 

of Contract Appeals 

I concur I concur 

~~ MARK N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Ad ' mistrative Judge 

Acting Vice Chairman 

Armed Services Board 

of Contract Appeals 

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. 59032, Appeal of PHA-JMR JV, 

rendered in conformance with the Board's Charter. 

Dated: 

8, 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals