ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) PHA-JMRJV ) ASBCA No. 59032 ) Under Contract No. FA4686-lO-C-0018 )
APPEARANCES FORTHE APPELLANT: Martin R. Salzman, Esq. Kevin S. Dale, Esq. David M. Gersh, Esq.

Hendrick Phillips Salzman & Flatt, P.C. Atlanta, GA
APPEARANCES FORTHE GOVERNMENT: Col Robert J. Preston II, USAF Acting Air Force ChiefTrial Attorney ChristopherM. McNulty, Esq. Capt Eric J. Singley, USAF

Trial Attorneys
OPINION BYADMINISTRATIVE JUDGE JAMES ON JURISDICTION
On 25 February 2014, the Board, 

### sua sponte, asked the parties to briefthe question whetherthe 30 April 2013 Contract Disputes Act (CDA) certification signed by Scott Manning, treasurer ofsubcontractor Progressive Roofing as "Attorney-in-fact for JMR," one ofthe PHA-JMRjointventurers, by a limited power ofattorney that expired
on 31 January 2013, was a valid CDA certification. Bothparties submitted briefs. At the parties' request, the Board also heard oral argument. Uponreview ofthe parties' briefs, attached exhibits and the transcript ofthe oral argument, we refocus the question as follows: whether either appellant's 25 January 2013 claim or 30 April 2013 claim is within the CDAjurisdiction ofthis Board.
STATEMENT OF FACTS (SOF)

I. On 11 August 2010, the U.S. Air Force 9th Contracting Squadron entered into ContractNo. FA4686-10-C-0018 (the contract) with PHA-JMRJV to construct roof sections A and B for BuildingNo. 1086 at Beale AirForce Base, California (R4, tab 1 at 1-3).
2. For PHA-JMRJV, "PHILIP L. HAWK.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 ofthe contract roofing work, including demolition (Salzman aff., ex. 1 at 1 ). As
our following Statement ofFacts demonstrate, there are many confusing aspects ofthis 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-JMRJV's claim, the body ofthe letter stated: "Please accept the letter as PHA-JMR's ('JMR') certified claim submission and request for a final Contracting Officer's decision on behalfofits subcontractor, Progressive Services, Inc. d/b/a Progressive Roofing." Itis unclear in the record what appellant intended by its parenthetical ("JMR") in this sentence. In various documents sometimes PHA-JMRJV is used to referto the contractor and appellant in this appeal, and sometimes JMR is used. Ofcourse, JMR is only one ofthe JV partners and not the contractor itself.
4. On 1November 2010, during the initial roofdemolition, Progressive's "Roof Warrior" cutting device struck several metal plates atop the concrete deck underlying the existing roofing. Progressive notified the government ofthis discovery on the next day. (Salzman aff., ex. 1 at 2, exs. IA, lB)
5. PHA-JMRJV's Request for Information 003 (RFI #3) dated 10 November 2010 was authored by John Morrill ofJMR, 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 ofJMR'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 letterto CO Pank on the letterhead ofProgressive 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. 1at 1-2) We find that PHA-JMRJV 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, 130 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 compliedwith 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. 1at 1, 5-7) Mr. 

### Salzman mailed the foregoing "written certified claim

...to the [CO] on behalfof 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-JMRJV, 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) ofthe prime contractor PHA-JMRJV (with no firm letterhead representation), or, a principal (treasurer) ofthe

...subcontractor" (Salzman aff., ex. 2).
11. The 30 April 2013 letter of"PHA-JMRJV ('JMR')" to CO Siiberg repeated the statements and included the "CONTRACTOR'S CERTIFICATION" signed by "ScottManning, Attorney-in-fact for JMR" in its January 2013 claim letter, and appended the following:

LIMITED POWEROF 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 Ownerpertaining to a differing site condition alleged by Progressive pertaining to roofing removal and replacement in connection with

...the AirForce Contract for Repair Roof, Flightline Support, B1086 at Beale AFB, California.... In connection with the pursuit ofthe said claims, the Contract Disputes Actrequires a Contractor Certification that the claims are made in good faith, that the supporting data is accurate and complete to the best ofthe contractor's knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractorbelieves the Government is liable. JMR does not have sufficient orpersonal knowledge, particularly as to Progressive's supporting data, to execute such a certification.

3ScottManning, 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 behalfthe Contractor's Certification. The undersigned does hereby consent to, ratify and confirm everything which the said attorney-in-fact, pursuantto the powers herein contained, shall legally do by virtue ofthese presents.
This Limited Power ofAttorney 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. JMRConstruction Corp. JoAnne [illegible] By: Ron [illegible] Witness Its: Vice President (Gov'tresp., attach. 1 at 8 of8)

12. CO Siiberg denied PHA-JMR's 30 April 2013 claim on 26 August 2013. PHA-JMRtimely appealed from that decision on 22 November 2013.
Contentions ofthe Parties Appellant argues that once the appeal record added the Limited Power of Attorney appointing ScottManning as attorney-in-fact on behalfofJMRto 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 ofsuchpower ofattorney did not impairthe validity ofits January 2013 certification. Ifappellant'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 ofthe prime contractor's authority to execute the prime contractor's CDA certification. An updated limited power ofattorney for Mr. Manning to correct a defect is futile, because his power ofattorney is invalid. (Gov't resp. at 1-6, attach. 3 at 6; tr. 25, 27-29)

4DECISION

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 ofright, 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. UnitedStates, 93 F.3d 1537, 1542-43 n.4 (Fed. Cir. 1996). Ifthe contractor's claim exceeds $100,000, it must be certified. 

### See 41 U.S.C. § 7103(b)(l).



### ERKA Construction Co., ASBCANo. 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 ofa "claim" as "awritten demand orwritten assertion by one ofthe contracting parties seeking, as a matter ofright, the payment ofmoney 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 ofqualifying language leaves the door open for the request ofmore money on the same basis," so appeal dismissed for lack ofCDAjurisdiction).
On 11August2011, when the contract was awarded to PHA-JMRJV, the CDA provided in 41 U.S.C. § 7103(b): (b) Certification ofclaims.- (l) Requirements generally.-For claims ofmore 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 ofthe contractor's knowledge and belief; (C) the amount requested ac.curately reflects the contract adjustment for which the contractorbelieves the Federal Government is liable; and (D) the certifier is authorized to certify the claim on behalfofthe 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) Failureto certify or defective certification

.... A defect in the certification ofa claim does not deprive a court or an agency board of jurisdiction overthe claim. Priorto the entry ofa finaljudgmentby 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., ASBCANo. 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" ofprime's added claim costs).
Second, signing the PHA-JMRJV claims, as distinguished from signing the claim certification, was not within Mr. Manning's limited power ofattorney (SOF 

### ii 11). Mr. Manning's limited power ofattorney was issued by JMR, notby PHA-JMRJV.
The third reason requires a briefsummary ofthe pertinent rules regardingjoint 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):

Ajointventure is an association ofpartners established by contractto carry out a single business activity forjoint profit. It is essentially a partnership created for a limited purpose. 

### Sade/miJoint Venture v. Dalton, 5 F.3d 510, 513 (Fed. Cir. 1993). Typically, ajointventure has an independent existence from its partners. 

### See Pine Prods. Corp. v. UnitedStates, 945 F.2d 1555, 1560 (Fed. Cir. 1991). Thus, whenthe government contracts with ajointventure, the jointventure is the entity with whom the government is in privity ofcontract, not its partners. 

### Brother's Cleaning Serv., Inc. v. UnitedStates, 38 Fed. Cl. 106, 108 (1997); 

### see also Pine Prods. 945 F.2d at 1561. Contrary to its contention here,
6the governmenthas historically opposed efforts byjoint venture partners to claim independentprivity on theirjoint ventures' government contracts, and attempts by partners to assert claims in their own names upon such contracts have been dismissed.


### See WackenhutInternational, 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. andA-1 Construction Co., Inc. d/b/alA-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 ofappeal by Bell alone for lack of jurisdiction); 

### Kiewit/Tulsa-Houston v. UnitedStates, 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 ajointventure agreement expressly authorizes one venturer orpartnerto assert a claim against the government and to execute
a CDA certification on behalfofthe JV. 

### E.g., Newberg-Brinderson, ASBCA No. 44845, 94-3 BCA -,r 27,095 at 135,009 (Dale Gold, vice-president ofNewberg, 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 (thepresidents ofboth co-venturers signedthe CDA certification ofthe 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 vicepresident executed Mr. Manning's limitedpower ofattorney on behalfofJMR (SOF -,r 11). There is no evidence, such as the PHA-JMRJVjointventure agreement, that JMRwas authorized to execute a power ofattorney on behalfofthe PHA-JMR JV or for Mr. Manning to sign PHA-JMRJV's claim (SOF -,r-,r 3, 11). And in fact the limited power ofattorney does not mention thejointventure orthejointventure's claim that is in addition to Progressive's claimed amount. Forthe 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 pursuantto a limited power ofattorney signedby one ofthe two venturers ofPHA-JMRJV.

7CONCLUSION

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-JMRJV (the contractor) to pay particular attention to who is signing claims and certifications, and in what capacity they are signing.
Dated: 1August2014

Armed Services ofContract Appeals

I concur I concur

# ~~ MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Ad ' mistrative Judge Acting Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 59032, Appeal ofPHA-JMRJV, rendered in conformance with the Board's Charter.
Dated:

8, JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals