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 do 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.
Claims 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.
Does the Agency Have to Give You a Break for Failure to Meet Certification Requirements?
The ultimate question sometimes if whether the government actually notified you up from 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 requirement and legal rules can be very costly.
41 USC 7102 Contract Disputes Act Appellate Court 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 exceeding $100,000. A defective claims certification does not deprive the Board of jurisdiction; however, the complete absence of a certification is not a jurisdictional defect that can be corrected after an appeal has been filed.
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.
How long does the contracting officer have to issue a decision on a contractor claim?
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.
For help meeting the Contract Disputes Act Statutory requirements filing an appeal or claim, contact the contract claims attorneys at Watson & Associates by calling 1-866-601-5518.