In a previous post, we discussed the need to include a sum certain as part of a CDA claim. This requirement of course is but one of several needed for a CDA claim to be valid and for the Court of Federal Claims and the boards of contract appeals to take jurisdiction. Another equally important requirement is that the claim be certified. Like the sum certain requirement, failing to properly certify a claim has the potential to derail pending litigation, or worse, could even prevent an unwary contractor from asserting the claim altogether.
41 U.S.C § 7103 lays out the requirement for certifying a claim under the CDA. For any claim exceeding $100,000, a contractor must 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 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. While it is not necessary for a contractor to exactly parrot the language used in § 7103, contractors should still ensure each of the four elements are addressed in the certification and that it is properly signed by an individual “authorized to bind the contractor with respect to the claim.” A defective certification, however, will not deprive the Court of Federal Claims or agency board of jurisdiction under § 7103(b)(3).
Be careful not to read the CDA’s savings clause for defective claims too broadly, though. It does not apply to situations where the contractor fails to make any certification whatsoever. The ASBCA decision in Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008 is a good example of how leaving out the certification altogether could prove fatal to a CDA claim. In that decision, Kamaludin, a small Afghan company, agreed to supply heavy construction equipment to the U.S. Army in late 2011 and early 2012. The Army continued to use the equipment well after the contract terms ended and in locations Kamaludin had not approved. Kamaludin sent a series of “letters of claim” in March 2013, asserting entitlement to $155,500, $55,000, and $18,183 for the Army’s ongoing use of the equipment. The letter of claim for $155,500 did not include any certification language even though this was required under the CDA.
Six years later in March 2019, Kamaludin sent an email to the contracting officer that sought to retroactively apply the CDA certification language in each of its letter of claim. Kamaludin then proceeded to file an appeal for each of its three letters of claims at the ASBCA.
On the government’s motion for summary judgment, the ASBCA found that Kamaludin did not submit a certified claim within the six-year statute of limitation period when the $155,500 claim accrued in November 2012. The Board found Kamaludin failed to address any of the four elements from § 7103 in its March 2013 letter. The Board also rejected Kamaludin’s invitation to find implicit certification because this loose reading of the status is contrary to the express terms of the CDA and would render the certification requirement meaningless. Drawing in part on the definition of a defective certification in FAR 33.201, the Board concluded that the failure to certify was not included as part of this definition. Kamaludin’s failure to certify the claim in any way meant that the Board did not have jurisdiction to hear the dispute. And because the statue of limitations had run, the Board granted the government’s motion for summary judgment and denied Kamaludin’s appeal.
Although the Kamaludin decision is somewhat of an extreme example, it does illustrate how failing to certify a claim at all could lead to disastrous results, especially if the six-year statue of limitations period has nearly passed. To avoid this outcome, contractors should always certify CDA claims above $100,000 and should take care that each of the elements found under § 7103 are incorporated as part of the certification language.