Contract Disputes Act of 1978 Certification Requirements

Contract Claims Certification and Appeals Requirements

When reviewing the Contract Disputes Act certification requirements for litigation and appeals, a costly mistake made by government contractors is to submit a claim against the government but not follow the claim certification requirements of the Act.

Another mistake is to file a government contract claim as part of a joint venture relationship. Courts have strict requirements when hearing appeal cases.

If you do not meet the legal requirements at the submission stage, your case can easily get dismissed, regardless of the work the government received.

The Contract Disputes Act Claim Certification Requirement is Mandatory

In order for the Board of Contract Appeals to have jurisdiction of a case for more than $100,000 under the Contracts Disputes Act, you must certify that:

• the claim is made in good faith;
• the supporting data are accurate and complete to the best of the contractor’s knowledge and belief; .
• the amount requested accurately reflects the contract adjustment for which the company believes the Federal Government is liable; and the certifier is authorized to certify the claim on behalf of the business.

The US. Court of Federal Claims has consistently ruled that proper CDA certification is a jurisdictional prerequisite to a direct access action by a Government contractor if it exceeds $100,000. Fredenburg v. United States, 10 Cl. Ct. at 218; T.J.D.  Claims certification is a critical aspect of  submitting a claim to the contracting officer. One goal is to deter misrepresentation or fraud. As a government contractor, you must personally certify his written claim for damages. 

Does the Agency Have to Give You a Break for Failure to Meet Certification Requirements? 

The ultimate question sometimes is whether the government actually notified you that you claim did not meet the CDA certification requirement. Although you may think this is questionable before the court, the real question is whether the ASBCA or Court of Federal Claims has jurisdiction to hear your case on appeal.

• The Agency does not have the authority to change the statutory requirements.
• The CO can simply deny the claim on the merits of the claim itself but may not tell you that you did not meet the certification requirements.

If you fail to meet the CDA certification requirement, the government may not always educate you about the rule.

Despite knowing that you completed the work, the Contracting Officer will sometimes deny the claim or payment of your invoice and ask the appeals court to dismiss the case.

No Leniency for Contingency and Overseas Government Contract Disputes or Claims: For construction companies in Iraq and Afghanistan, the ASBCA has denied claims for lack of jurisdiction. See Appeal of New Iraq Ahd Company.

Unfamiliarity with government contract claims certification requirements and legal rules can be very costly.

Have You Met the Definition of a Contract Disputes Act Claim?

 The CDA  does not define the term “claim.” However, your contract incorporates by reference the Disputes clause which defines a claim as “ a written demand or written assertion by one of the parties seeking, as a matter of right, the payment of money in a sum certain.

However, a written demand or written assertion by the party seeking the payment of money exceeding $100,000 does not meet the legal requirement until certified.

• An email to the CO can be seen as a written demand for payment, as a matter of right, to the government for costs incurred in performing the contract.
• If you fail to meet the CDA certification requirements, then you will have problems on appeal because of lack of jurisdiction by the court.

What is the Timeline a Contracting Officer Final Decision Under the CDA?

Under FAR 33.211 The contracting officer shall issue the decision within the following statutory time limitations:

(1) For claims of $100,000 or less, 60 days after receiving a written request from the contractor that a decision be rendered within that period, or within a reasonable time after receipt of the claim if the contractor does not make such a request.

(2) For claims over $100,000, 60 days after receiving a certified claim; provided, however, that if a decision will not be issued within 60 days, the contracting officer shall notify the contractor, within that period, of the time within which a decision will be issued.

(d) The contracting officer shall issue a decision within a reasonable time, taking into account —

(1) The size and complexity of the claim;

(2) The adequacy of the contractor’s supporting data; and

(3) Any other relevant factors.

(e) The contracting officer shall have no obligation to render a final decision on any claim exceeding $100,000 which contains a defective certification, if, within 60 days after receipt of the claim, the contracting officer notifies the contractor, in writing, of the reasons why any attempted certification was found to be defective.

(f) In the event of undue delay by the contracting officer in rendering a decision on a claim, the contractor may request the tribunal concerned to direct the contracting officer to issue a decision in a specified time period determined by the tribunal.

(g) Any failure of the contracting officer to issue a decision within the required time periods will be deemed a decision by the contracting officer denying the claim and will authorize the contractor to file an appeal or suit on the claim.

(h) The amount determined payable under the decision, less any portion already paid, should be paid, if otherwise proper, without awaiting contractor action concerning appeal. Such payment shall be without prejudice to the rights of either party.

41 USC 7102 Contract Disputes Act COFC and ASBCA and CBCA Boards Appellate Jurisdiction Requirements

First, the Contract Disputes Act only applies to express or implied contracts made by an executive agency of the government. 41 USC  7102(a). Thus, the Board of Contract Appeals only entertains appeals under the CDA involving agreements entered into by executive agencies.

Second, the requirements for certification imposes specific legal prerequisites to pursuing an appeal. In the case of a federal claim, the contracting officer must have issued a written decision “against a contractor on a contract.” 41 USC  7103(a)(3).

You Must be a Party to the Contract Dispute

The Contract Disputes  Act defines a “contractor” to be “a party to a Federal Government agreement other than the Federal Government.” 41 USC 7101 (7).  The parties to a joint venture contract are the government and the joint venture entity.

If you are the business that makes up the joint venture, you simply cannot file an appeal. It will be dismissed. These are all legal issues that can cost you thousands in litigation.

The above is an appellate jurisdictional prerequisite for government contract claims to exceed $100,000. A defective claims certification does not deprive the Board of jurisdiction; however, the complete absence of certification is not a jurisdictional defect that can be corrected after an appeal has been filed. See Government Contracting – FAR Construction Delay Claims & FAR Changes Clause.

ASBCA Appellate Jurisdiction

Boards, including ASBCA, have subject matter jurisdiction over a “procurement” or executive agency contract.  Whether a contract is for something that directly benefits the United States is an important factor in determining whether a contract falls within 41 U.S.C. §7102 and 7105  (CDA). See Wesleyan Co., Inc. v. Harvey, 454 F. 3d 1375, 1378 (Fed. Cir. 2006) (defining “procurement,” as that term is used in the CDA, as the “acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government).”

• The ASBCA does not have jurisdiction over new issues raised for the first time on appeal and which have not been presented to the contracting officer.
• ASBCA has jurisdiction over a non-frivolous allegation of an implied-in-fact contract

CBCA Appellate Jurisdiction

Similar to the ASBCA, the CBCA retains jurisdiction under the Contract Disputes Act and for claims that have been properly presented to the contracting officer for a determination. Government Contract Novation Vs Assignment of Contract & FAR 42.1204 Novation Clause

• No CBCA jurisdiction over involves cases involving the purchase of real property)
• No CBCA jurisdiction over an appeal by a third-party beneficiary of a government contract
• CBCA jurisdiction over claims that contractor had submitted to the Contracting Officer and was based on same operative facts

U.S. Court of Federal Claims Appellate Jurisdiction Under the Contract Disputes Act

The Court of Federal claims has appellate “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.”  See 28 USC 1491(b)(1) (2012). This jurisdictional authority is “without regard to whether the lawsuit is instituted before or after the contract is awarded.”

When the court decides a motion to dismiss based on lack of jurisdiction, the COFC presumes that all undisputed factual allegations are true and construe all reasonable inferences in favor of the plaintiff.  See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations omitted). Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted).

• If the Court of Federal finds that it has no appellate jurisdiction, then it must dismiss the action. RCFC 12(h)(3). See important information about Overcoming FAR Contractor Release of Claims Hurdles

REA vs Contract Disputes Act Claims Request – Appealing Contracting Officer’s Final Decision

For help meeting the Contract Disputes Act certification requirements and appellate court jurisdiction when filing an appeal or claim, contact the CDA and government contract claims attorneys at Watson & Associates by calling 1-866-601-5518. We also represent US government contractors in Dubai, Afghanistan, Turkey and Iraq.