MOTIONS TO DISMISS FOR LACK OF JURISDICTION DENIED: September 15, 1992 GSBCA 11847, 11860 P. J. DICK INCORPORATED, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John T. Flynn and John E. Menechino, Jr., of Smith, Currie & Hancock, Atlanta, GA, counsel for Appellant. Gerald L. Schrader, Telo W. Braswell, and Martin A. Hom, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, and Kenneth E. Kendell, Office of Regional Counsel, General Services Administration, Philadelphia, counsel for Respondent. Before Board Judges LaBELLA, Acting Chief Judge, NEILL, and DANIELS. DANIELS, Board Judge. The Contract Disputes Act of 1978 requires that all contractor claims of more than $50,000 be accompanied by a certification. The contractor must certify to three items: "the claim is made in good faith;" "the supporting data are accurate and complete to the best of his knowledge and belief;" and "the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable." 41 U.S.C. 605(c)(1) (1988). In filing claims for $80,331 (GSBCA 11847) and $62,744 (GSBCA 11860), both under a contract for the renovation of the United States Post Office and Courthouse in Pittsburgh, Pennsylvania, P.J. Dick Incorporated supplied a certification which did not include the precise words of the statute. With regard to the second item above, the contractor's president and chief executive officer did not include the words "to the best of my knowledge and belief." The certification reads: In accordance with FAR 52.233-1, the undersigned hereby certifies that this claim . . . is made in good faith, that the supporting data is accurate and complete and that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable. The General Services Administration, respondent, has moved to dismiss the appeals of the deemed denials of these claims, on the ground that the certifications were defective and that this error divests the Board of jurisdiction to hear the cases. Appellant opposes the motions. In our judgment, the Government is exalting form over substance; the certifications substantially complied with the requirements of the statute. We deny the motions. Discussion Shortly after enactment of the Contract Disputes Act, the Court of Claims and its successor, the Court of Appeals for the Federal Circuit, held that the Act's certification requirement is jurisdictional -- if a contractor files an uncertified claim in an amount greater than $50,000, any contracting officer's decision on that claim, and any court or board determination regarding that decision, has no legal effect. W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338-39 (Fed. Cir. 1983); Skelly & Loy v. United States, 231 Ct. Cl. 370, 377, 685 F.2d 414, 419 (1982). From this holding has cascaded a flood of litigation regarding contractors' deviations from the words used in the Act to describe elements essential to a certification. Showing the applicability of vast numbers of decisions to the matter now before us, in the present motions, the Government has cited eighteen cases, and in response, the contractor has not only discussed twelve of them, but also called to our attention eleven others. The Court of Appeals attempted to stem this deluge back in 1984, when it is cautioned against "formalistic" application of the words of the statute and held that a certification is valid if it is in "substantial compliance" with the law's requirements. United States v. General Electric Corp., 727 F.2d 1567, 1569 (Fed. Cir. 1984). Three years later, the Court, in saying that it "kn[e]w of no requirement in the Disputes Act that a 'claim' must be submitted in any particular form or use any particular wording," cited approvingly a Claims Court decision which holds that where certification is questioned, "a factor that merits close attention is whether putting the stamp of approval on a claim certification comports favorably with the purpose and rationale of the certification provision, Section 605(c)(1)." Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) (citing Metric Construction Co. v. United States, 1 Cl. Ct. 383, 393 (1983)). The Court of Appeals has summarized its understanding of this purpose and rationale as follows: The certification requirement furthers an important objective of Congress by "trigger[ing] a contractor's potential liability for a fraudulent claim under section 604 of the Act." Skelly & Loy v. United States, 231 Ct. Cl. 370, 685 F.2d 414, 418 n. 11 (1982), and thus "discourag[ing] the submission of unwarranted contractor claims.'" Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 354 (Ct. Cl. 1982) (quoting S. Rep. No. 1118, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Admin. News 5235, 5239). "Congress wanted to hold the contractor personally liable, and it considered the best way to do this would be to require contractors personally to certify their claims." Donald M. Drake Co. v. United States, 12 Cl. Ct. 518, 519 (1987). Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426, 1429 (Fed. Cir. 1989). This Board has attempted to follow the Court's direction by applying the "substantial compliance" test, on a case-by-case basis, in evaluating the propriety of contractor certifications. See, e.g., Lorentz Bruun Co., GSBCA 8504 et al., 88-2 BCA 20,719, at 104,700-01 (1988); Joseph P. Mentor, GSBCA 6757, 85-1 BCA 17,887, at 89,589 (1985). The bulk of the litigation on this subject has been before other agency boards of contract appeals, which have been extremely restrictive in permitting deviations from the precise words of the statute. For example, where a contractor has certified that data supporting the claim are accurate and complete to the best of his "knowledge," but not additionally his "belief," the Armed Services and Department of Veterans Affairs Boards have found the certification defective. Henry Angelo & Co., ASBCA 41827, 91-3 BCA 24,120 (1991); Allied Painting & Decorating Co., ASBCA 42496, 91-3 BCA 24,076 (1991); Kohol Systems, Inc., ASBCA 40710, 91-1 BCA 23,291 (1990); Liberty Environmental Specialties, Inc., VABCA 2948, 89-3 BCA 21,982 (1989). In so doing, the Armed Services Board in particular has expressly rejected our view of the efficacy of certifications which do not parrot the words of the statute. Griffin Services, Inc., ASBCA 40158, 90-3 BCA 23,194, at 116,406 (1990); LaCoste Builders, Inc., ASBCA 31209, 86-2 BCA 18,963, at 95,749-3 (1986). The Claims Court, on the other hand, has held that a certification of accuracy and completeness of data to a contractor's "knowledge" but not "belief" is in substantial compliance with the Contract Disputes Act. Alcan Electrical & Engineering Co. v. United States, 24 Cl. Ct. 704 (1992). The certifications submitted by the contractor in the instant cases attest that the data supporting the claims are accurate and complete, but omit any reference to the firm's president's knowledge or belief as the basis for this conclusion. The Court of Appeals has within the past fortnight reaffirmed the viability of the "substantial compliance" test, as enunciated in General Electric, for determining the validity of certifications. Transamerica Insurance Corp. v. United States, No. 92-5044 (Fed. Cir. Sept. 4, 1992). In our judgment, applying this standard to the present circumstances compels a conclusion that the certifications are acceptable. The Claims Court's analysis in Alcan Electrical & Engineering is especially helpful in this regard. There, the court found that the certification of accuracy and completeness of underlying data exposed the contractor "to no less liability for a false statement than . . . if he had used the statutory language verbatim." 24 Cl. Ct. at 709. Thus, the purpose and rationale of the certification requirement were met by the contractor's statement. This is clearly true here as well. By stating that the data are accurate and complete, without any qualification whatsoever, appellant has provided the Government with more than the statute requires. As appellant says: P.J. Dick's certification imposes a higher standard of truthfulness on itself as it makes the unqualified statement that its supporting data is accurate and complete without any equivocating or conditional language stating that the supporting data is only accurate and compete "to the best of its knowledge and belief." What P.J. Dick has done is give the Government a certification as to the accuracy and completeness of its supporting data without availing itself of the protections the [Contract Disputes Act] has permitted. Brief in Opposition to Respondent's Motions to Dismiss at 6. Thus, appellant has more fully exposed itself to potential liability under statutes cited by the Claims Court in Alcan than it would have if it had mimicked the words of the statute. These laws include the Contract Disputes Act, 41 U.S.C. 604 (1988); the False Claims Act, 31 U.S.C.A. 3729 et seq. (West Supp. 1992); the Forfeiture Statute, 28 U.S.C. 2514 (1988); and the criminal law at 18 U.S.C. 1001 (1988). See 24 Cl. Ct. at 709. The purposes of the certification requirement are consequently advanced by appellant's statement. In concurring with appellant's analysis, we continue to part company with the Armed Services Board over the proper application of the Court of Appeals' "substantial compliance" test. We are not persuaded to abandon our stance by the Court's affirmance, without opinion, of that board's decision in Holmes & Narver Services, Inc./Morrison-Knudsen Co., Inc., Joint Venture, ASBCA 36246, 91-1 BCA 23,402 (1990), aff'd, 937 F.2d 622 (table) (Fed. Cir. 1991). There, the contractor submitted a claim accompanied by a certification that data were accurate and complete to the best of the project director's knowledge; the words "or belief" were not included. The contracting officer did not issue a decision on the claim; instead, he said that the data were inaccurate and solicited further information. The contractor responded by revising its calculations and providing a different certification, which included the word "belief" but promised nothing about the data's completeness. The contracting officer then denied the claim. The Armed Services Board concluded that it lacked jurisdiction over the appeal because both certifications were defective. To our understanding, because the contracting officer issued a decision only as to the second version of the claim, the only certification on whose efficacy jurisdiction might have turned was the second one. We have no difficulty in agreeing that a certification which does not go to the completeness of the supporting data is defective, for completeness is an essential element of a certification. We construe the Court's affirmance of the board's decision as doing nothing more than confirming this conclusion. Decision The Government's motions to dismiss are DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ VINCENT A. LaBELLA EDWIN B. NEILL Acting Chief Board Judge Board Judge