ARMED SERVICES BOARD OF CONTRACTAPPEALS
Appeals of

-- ) ) ABS Development Corporation ) ) ) Under ContractNo. W912GB-10-C-0047 )

APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 60022, 60023, 60201 60202,60203,60204 60205

Thomas R. Krider, Esq. Ashley J. Sherwood, Esq. Howard W. Roth III, Esq.

Oles Morrison Rinker & Baker LLP Seattle, WA

Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Brett R. Howard, Esq. Nancy Van Noortwijk-Sommer, Esq. Paul Cheverie, Esq.

EngineerTrial Attorneys U.S. Army EngineerDistrict, Europe

OPINION BYADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION

The government moves to dismiss these consolidated appeals for lack of jurisdiction because, the government says, appellant did not properly certify its claims.

STATEMENT OF FACTS FORPURPOSES OF THE MOTION

Contract

On 30 September 2010, the government and appellant, ABS Development Corporation, entered into the contractreferenced above for construction work at a shipyard in Haifa, Israel, for $26,956,562 (R4, tab 6 at 321, 324). The contractrecited that "[t]his procurement is restricted to United States firms only" (R4, tab 21 at 2). ABS's president, Dan Gueron, signed the contract on behalfofABS (id. at 321). On 19 September 2010, in response to concerns expressed by the government, ABS had revised its bidproposal to make (as reflected in arevised organizational chart) all project managers ABS employees, who would report to the ChiefExecutive Officer of ABS (R4, tab 23 at 3190-91). OtherABS employees, as well as employees of "Ashtrom Group," would report to those ABS project managers (id. at 3191). Therevised proposal represented that ABS was a United States subsidiary ofAshtrom Group (id. at 3192).

ASBCANos. 60022 and60023

On 9 March 2015, the contracting officerreceived from the email address "GilGueron@Ashtrom.co.il" a claim ostensibly from ABS for $10,403,693 "regarding the unjustified effective disallowance ofa large group

...ofthird country nationals

...hired by [ABS]" (R4, tab 3 at 49, 54). On 16 March 2015, the contracting officerreceived from the same email address a claim, also ostensibly from ABS, for $4,836,240 regarding "material delays" (R4, tab 2 at 45-46). The claims include the certification language requiredby the Contract Disputes Act (CDA), 41 U.S.C. § 7103(b)(1 ), for claims ofmore than $100,000 (R4, tab 2 at 48, tab 3 at 56). The certifications are signedby Gil Gueron, who is listed as "Director" (id.). The contracting officerhas not acted on the claims, and on 5 June 2015, ABS appealed their deemed denial. We docketed the "material delays" appeal as ASBCANo. 60022, and the "disallowance" appeal as ASBCANo. 60023.

ASBCA Nos. 60201-60205

In July 2015, ABS presented tothe contracting officer five claims: (1) for $304,038 "regardingpartitions over 3 m height & doorsills demolishing in Hangar H20" (R4, tab 11 at 3060); (2) for $139,063 "regarding additional steel cladding and insulation works

...for the extension ofhangarH5" (R4, tab 13 at 3073); (3) for $129,622 "regardingHydraulic system for gate BD51 in HangarH6" (R4, tab 15 at 3094); (4) for $1,654,387 "regarding additional HVAC works [for] Building B16" (R4, tab 17 at 3126); and (5) for $514,359 "regarding additional construction and HV AC works

...for Building H-5" (R4, tab 19 at 3152).

The claims include the CDA's certification language (R4, tab 11 at 3063, tab 13 at 3075, tab 15 at 3096, tab 17 at 3129, tab 19 at 3154). Onthe "Name and Signature" lines ofthe certifications is typed "Y ossi Carmely," inwhat appears to be Times New Roman font; above that is typed**"YO»VCa.v~,"** in LucidaHandwriting font, or something simiiar (id.). Yossi Carmely is listed on the certifications as "ProjectManager" (id.).

The contracting officer has not acted on those claims. On 21 September2015, ABS appealedthe deemed denials ofthe "Hangar H20," "HangarH5," "Hangar H6," "Building B16," and "additional HV AC works for BuildingH-5" claims. We docketed those appeals as ASBCA Nos. 60201, 60202, 60203, 60204, and 60205, respectively.

2Motion to Dismiss

The government has moved to dismiss the appeals for lack of jurisdiction. With respect to ASBCA Nos. 60022 and 60023, the government says that Gil Gueron lacked the authority to certify claims. In response, ABS has providedthe declaration ofits president, Dan Gueron (who the government concedes is authorized to certify claims (app. opp'n at 6-7)) that "[i]n his role as Director ofABS, Gil Gueron was at all times relevantto these appeals, and still is, duly authorized to act onbehalfof, and to bind, ABS with regard to all matters related to [the contractwork], including submitting and certifying the claims submitted for these appeals" (decl. ofDan Gueron at 1,**~** 3). Attachedto that declaration are Delaware state annual franchise taxreports listing Gil Gueron as one ofABS's directors 

### (id., ex. 1).

The government also movedto dismiss ASBCA Nos. 60201 through 60205 on the basis that the underlying claims were not signed by anyone, becausethe electronically typed "signatures" ofYossi Carmely are not signatures at i;tll. In response, ABS argues that those "electronic signatures" are sufficientto bind it. Alternatively, ABS provides "wetink" signatures ofMr. Carmely on ABS's July 2015 certifications in question for the claims inASBCANos. 60201, 60202, 60203, 60204, and 60205 (app. opp'n at 11,
exs. 1-5).

DECISION

ASBCA Nos. 60022 and60023

A claim ofmore than $100,000 mustbe accompanied by a signed certification by an individual authorized to bindthe contractorwith respectto the claim, but a certification without such authority is a correctable defectthat does not deprive the Board of jurisdiction to entertain an appeal involving the claim. BellHelicopter Textron, Inc. & The Boeing Co., ASBCANo. 59561, 15-1 BCA**~** 36,111 at 176,293 (addressing 41 U.S.C. § 7103(b) and Federal Acquisition Regulation (FAR) 33.207. The certification may be executedby any person authorized tobind the contractorwith respect to the claim. FAR 33.207(e).

We possessjurisdictionto entertain ASBCANos. 60022 and 60023 because the claims underlying those appeals are accompanied by signed certifications; the question is whetherthose certifications need correction. The government challenges Gil Gueron's authority to certify the claims because, the government says, Gil Gueron is an employee ofAshtrom, not ABS, and that ABS promised, before it was awarded the contract, that only ABS employees would managethe projectwork. The government insists (we gather becausethe procurement could onlyhave been awarded to a United States firm) that "[w]hatthe Government wants, and is entitled to get, is that these claims be certified by
someone who is an actual employee ofthe prime contactor, ABS" (reply 6-7).

3We find no such entitlement. FAR 33.207(e) provides that "[t]he certification may be executed by anyperson authorized to bind the contractorwith respect to the claim" (emphasis added); there is no further requirement thatthe person also be an employee ofthe contractor. Here, ABS'spresident has declared that the person who certified the claims was, and still is, "duly authorized to act onbehalfof, and to bind, ABS with regard to all matters related to" the contract work. We find that declaration credible, and that Gil Gueron is authorized to certify the claims. CfBellHelicopter, 15-1 BCAii 36, 111 at 176,293 (citing with approval Sade/miJoint Venture v. Dalton, 5 F.3d 510, 513 (Fed. Cir. 1993), and parenthetically explaining that the Sa/demi court relied on affidavits to conclude that certifier had authority). WhetherABS broke a promise to the governmentby having Gil Gueron and not some otherperson certify the claims does not mean that he is not "authorized to bind the contractor with respect to the claim[s]." For all purposes ofthe claim certification requirement, ABS is bound to those claims. Their certifications are not defective, and need no correction.

ASBCA Nos. 60201, 60202, 60203, 60204, and60205

We do not possessjurisdictionto entertain ASBCA Nos. 60201, 60202, 60203, 60204, and 60205. The Board cannot entertain an appeal involving a claim ofmore than $100,000 unless the claim was the subject ofa signed certification. See Teknocraft, Inc., ASBCA No. 55438, 08-1BCAii33,846 at 167,504. An unsigned certification is a defect that cannot be corrected. Id. at 167,504-05.

A signature is a discrete, verifiable symbol that is sufficiently distinguishable to authenticate that the certification was issued with the purported author's knowledge and consent orto establish his intent to certify, and, therefore, cannot be easily disavowed by the purported author. See Teknocraft, 08-1BCAii33,846 at 167,504-05 (addressing FAR 2.101). Here we are not confronted with an issue of "electronic signatures"; rather, we are confronted with several typewritings ofa name (presumably typewritten by electronic means), purporting to be signatures. However, atypewritten name, even one typewritten in LucidaHandwriting font, cannotbe authenticated, and, therefore, is not a signature. Cfid. (typewritten "//signed//" not a signature because it cannotbe authenticated). That is, anyone can type a person's name; there is no way to tell who did so from the typewriting itself. See id.

The claim certifications purportedly executed by Yossi Carmely in ASBCA Nos. 60201, 60202, 60203, 60204, and 60205 are not signed; rather, the name "Y ossi Carmely" is typed twice on each certification, once in what appears to be Times New Roman font, and a second time, above the first, in Lucida Handwriting font, or something similar. Anyone could have typed those names, even the ones in "Lucida Handwriting"; there is no way to authenticate any ofthem. Yossi Carmely could easily disavow them, regardless ofwhether he does, or everwould, disavow them. Because the

4certifications are unsigned, and because that is not a correctable defect, we lackjurisdiction to entertain ASBCA Nos. 60201, 60202, 60203, 60204, and 60205, and dismiss them. Accordingly, we find it unnecessary to address the government's alternative argument that the purported certifications ofthe claims underlyingASBCA Nos. 60202 and 60204 refer not to those claims, butto other claims entirely. In addition, because the unsigned certifications are not a correctable defect, we find it unnecessary to considerthe "wetink" certifications that ABS provided in response to the motions to dismiss.

CONCLUSION

We have considered the parties' other arguments, butbecause ofthis decision, need not address them.* The motion is granted with respect to ASBCANos. 60201, 60202, 60203, 60204, and 60205, which are dismissed. Otherwise, the motion is denied.

Dated: 17 November 2016

# ~~**.--~MCILIL** Administrative Judge Armed Services Board ofContractAppeals

# 4~~**JAJ~-- -~rrr//**  MARK N.

# STEMPLE~ RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

* In particular, nothing in the government's 28 October2016 filing alters our decision.

5I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA Nos. 60022, 60023, 60201, 60202, 60203, 60204, 60205, Appeals ofABS Development Corporation, rendered in conformance with the Board's Charter.

Dated:

6 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals