___________________________________________ MOTION TO DISMISS DENIED: April 18, 1994 ___________________________________________ GSBCA 12294 SAE/AMERICON - MID-ATLANTIC, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Lowell J. Noteboom, Robert J. Huber, and Robert H. Torgerson of Leonard, Street and Deinard, Minneapolis, MN; and Peter M. D'Ambrosio and Mark E. Hanson of Smith, Pachter, McWhorter & D'Ambrosio, Vienna, VA, counsel for Appellant. Robert C. Smith, Martin A. Hom, and M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and VERGILIO. HYATT, Board Judge. On January 29, 1993, SAE/Americon - Mid-Atlantic, Inc. appealed a contracting officer's decision denying its claim for an equitable adjustment under a contract for the construction of an annex to a federal courthouse. Appellant alleges that the exterior wall metal stud system described in the solicitation was improperly designed, with the result that appellant was required to redesign the stud system and supply considerably more metal studs than called for under the contract documents. The General Services Administration (GSA) has moved to dismiss the appeal for lack of jurisdiction because appellant failed to provide a properly certified claim to the contracting officer. For the reasons stated, the motion is denied. Background Appellant, SAE/Americon - Mid-Atlantic, Inc., was awarded contract number GS-03P-91-CDC-0006 for $22,519,000 on April 26, 1991. Under the contract, appellant was to construct an annex to the courthouse and federal office building in Trenton, New Jersey. Appeal File, Exhibit 1. Section 05400 of the contract required appellant to provide, fabricate, and erect an exterior wall metal stud system. Appeal File, Exhibit 1. Appellant wrote to O'Brien-Kreitzberg & Associates, Inc., respondent's construction quality manager, on April 9, 1992, enclosing shop drawings prepared by its drywall subcontractor. In that letter, SAE alleged the existence of a conflict between the architectural drawings and the design criteria set forth in the specifications. As a result of this perceived conflict, SAE informed the construction quality manager that more work would be necessary than was shown on the architectural drawings and that the estimated cost of the additional work would be about $200,000. Appeal File, Exhibit 8. On July 8, 1992, O'Brien-Kreitzberg rejected appellant's shop drawings. Appeal File, Exhibit 15. On July 8, 1992, appellant submitted change order request (COR) number 84 to O'Brien-Kreitzberg seeking $196,261 and a thirty-day extension of time. Appellant included a "Certificate of Current Cost or Pricing Data" and a "Certificate of Procurement Integrity--Modification" with its request. The certificate of current cost or pricing data included the following language: This is to certify that, to the best of my knowledge and belief, the cost of pricing date [sic] (as defined in section 15.801 of the Federal Acquisition Regulation (FAR) and required under FAR subsection 15.804-2) submitted, either actually or by specific identification in writing, to the contracting officer or to the contracting officer's representative in support of (1) SAE Change Order Request 84 are accurate, complete, and current as of 7/8/92 (2). This certification includes the cost or pricing data supporting any advance agreements or forward pricing rate agreements between the offeror and the Government that are a part of the proposal. Appeal File, Exhibit 14. O'Brien-Kreitzberg rejected the change order request on September 1, 1992. Appeal File, Exhibit 24. On October 28, 1992, appellant submitted this change order request to the contracting officer for a "final decision" on this matter. Appeal File, Exhibit 28. This request included a copy of the certification submitted with change order request number 84 to O'Brien-Kreitzberg. Appeal File, Exhibits 14, 28; SAE/Americon's Brief in Opposition to the GSA's Motion to Dismiss, Appendix A. The contracting officer denied the request for an equitable adjustment and time extension on December 22, 1992. Appeal File, Exhibit 29. Appellant filed an appeal at the Board on January 29, 1993. Respondent questioned the validity of the certification in an initial status conference. After unsuccessfully attempting to negotiate an accommodation of the matter, on November 16, 1993, respondent moved to dismiss appellant's appeal for lack of jurisdiction. Discussion Respondent alleges that a properly certified claim was never presented to the contracting officer and that this omission is not correctable under the Federal Courts Administration Act of 1992 (FCAA), Pub. L. No. 102-572, 106 Stat. 4516 (1992), 41 U.S.C. 605 (Supp. IV 1992). Appellant contends that its certification was proper but, in any event, if necessary, the FCAA allows appellant to file a corrected certification. Under the Contract Disputes Act of 1978 (CDA), all claims by a contractor against the Government must be in writing and submitted to the contracting officer for a decision before a board may assume jurisdiction over an appeal. 41 U.S.C. 605(a) (1988). For all claims over $50,000, the CDA further requires that "the contractor shall certify [1] that the claim is made in good faith, [2] that the supporting data are accurate and complete to the best of his knowledge and belief, and [3] that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable." 41 U.S.C. 605(c) (1988). Prior to enactment of the Federal Courts Administration Act,[foot #] 1 the failure to properly certify a claim was a jurisdictional defect depriving the Board of jurisdiction to hear the appeal. See United States v. Grumman Aerospace Corp., 927 F.2d 575 (Fed. Cir.), cert. denied, 112 S. Ct. 330 (1991); Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426 (Fed. Cir. 1989). Under these cases, when a certification did not "substantially comply"[foot #] 2 with the CDA, ----------- FOOTNOTE BEGINS --------- [foot #] 1 The FCAA applies to "all claims filed before, on, or after [October 29, 1992], except for those claims which, before [October 29, 1992] have been the subject of an appeal to an agency board of contract appeals . . . ." 41 U.S.C. 605 note (Supp. IV 1992). Because appellant's claim was not the subject of an appeal until January 29, 1993, the claim is covered by the FCAA. [foot #] 2 CDA tribunals have differed over the requirements for "substantial compliance." See, e.g., Domgaard ___ ____ ________ (continued...) ----------- FOOTNOTE ENDS ----------- the Board was required to dismiss the appeal. A contractor who then wished to proceed could submit a properly certified claim to the contracting officer and, if that claim was denied, appeal the decision. Skelly & Loy v. United States, 685 F.2d 414 (Ct. Cl. 1982). The Government argues that SAE's claim was not certified when made and, alternatively, that if the certification that accompanied the change request is deemed to be a certification, it is not adequate to meet the requirements of the CDA. The letter addressed to the contracting officer did not by itself contain a certification. In its request for a contracting officer's decision on its claim, however, SAE provided the contracting officer with the entire COR submission, including the cost or pricing certification. We thus find that the claim was certified, albeit defectively, as presented to the contracting officer. See Isles Engineering & Construction, Inc. v. United States, 26 Cl. Ct. 240 (1992). SAE/Americon's "Certificate of Current Cost or Pricing Data" does not include the language specified by the first and third prongs of section 6(c) of the Contract Disputes Act. In particular, SAE did not certify that "the claim is made in good faith" and "that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable." The United States Court of Appeals for the Federal Circuit has found that similar certifications of "cost or pricing data" do not fully satisfy the requirements of the Contract Disputes Act. ReCon Paving, Inc. v. United States, 745 F.2d 34 (Fed. Cir. 1984). The failure of SAE's defective prior certification to meet two of the three prongs of the CDA requirement is no longer a jurisdictional bar to hearing its claim, however. Section 907(a) of the Federal Courts Administration Act added the following language to section 6(c) of the Contract Disputes Act: A defect in the certification of a claim shall not deprive a court or an agency board of contract appeals of jurisdiction over that claim. Prior to the entry of a final judgment by a court or a decision by an agency board of contract appeals, the court or agency board ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) Associates v. General Services Administration, GSBCA 11421, 93-3 _____________________________________________ BCA 25,955, at 129,084 (comparing holdings of Armed Services and Veterans Affairs Boards of Contract Appeals with holdings of United States Claims Court (now the United States Court of Federal Claims) and the General Services Administration Board of Contract Appeals); H.R. Rep. No. 1006, 102d Cong., 2d Sess. 28 (1992) ("Wasteful and esoteric litigation over this issue has produced several hundred written and, oftentimes, conflicting opinions from various courts and agency appeals boards."). ----------- FOOTNOTE ENDS ----------- shall require a defective certification to be corrected. The new certification language inserted by the FCAA changes the nature of CDA compliance in an effort to avoid "repetition of the entire administrative claims process and waste of judicial or board resources." H.R. Rep. No. 1006, 102d Cong., 2d Sess. 28 (1992). As defective certifications are now both correctable and non-jurisdictional, the pertinent inquiry is whether the flaws in appellant's attempted certification are so significant that, rather than treat the certification as "defective" under the FCAA, we must effectively conclude that no certification was submitted. If the Board is persuaded that a defective certification was submitted, the remedy is to require appellant to file a proper certification. See Phoenix Petroleum Co., ASBCA 42763, et al., 94-1 BCA 26,461 (1993). The Government argues that the FCAA amendments are indeed inapplicable because the cost or pricing data certificate provided by appellant is tantamount to the absence of a CDA certification. Thus, the Government argues, there is nothing to correct. We are not persuaded by this analysis, however. The recent board cases relied upon by the Government for the proposition that noncertification cannot be corrected under the FCAA both address the complete absence of any certification. See Eurostyle Inc., ASBCA 45934, 94-1 BCA 26,458, at 131,654 (1993) ("the complete absence of any certification is not a mere defect which may be corrected under the Act"); Applied Science Associates, Inc., EBCA 9301146, 93-3 BCA 26,051, at 129,504 ("FCAA did not authorize the filing of a certification where none was previously filed"). These decisions recognize that "[a]bsent a certification, correction is not an option. There must first be something to correct." Applied Science Associates, Inc., 93-3 BCA at 129,504. The focus under the FCAA is on whether any certification was submitted at all, not on how closely the certification approximated the language of 605(c). Neither of the deficiencies identified by the Government is of such a nature as to compel us to find "the complete absence of any certification." Eurostyle Inc., 94-1 BCA at 131,654. Appellant's certification met the second of the three prongs required for literal compliance. This suffices to bridge the gap between a claim submitted without any certification and one submitted with a defective certification.[foot #] 3 Our inquiry need go ----------- FOOTNOTE BEGINS --------- [foot #] 3 In this connection, we note that, to some extent, the CDA certification requirement and the certificate of cost or pricing data are intended to achieve a similar objective -- discouraging the submission of spurious or inflated cost claims or estimates by contractors. See, e.g., Skelly & Loy v. ___ ____ ________________ United States, 685 F.2d 414, 417 n.8 (Ct. Cl. 1982); Cutler- ______________ _______ (continued...) ----------- FOOTNOTE ENDS ----------- no further. Although we agree that the certification does not fully meet the formal requirements of the CDA, the FCAA entitles appellant to file a corrected certification and proceed with its appeal. Decision The Government's motion to dismiss is DENIED. Appellant is directed to file and serve a complete certification within sixty days of receipt of this decision. _____________________________ CATHERINE B. HYATT Board Judge We concur: _________________________ _____________________________ ANTHONY S. BORWICK JOSEPH A. VERGILIO Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 (...continued) Hammer, Inc. v. United States, 416 F.2d 1306, 1311 (Ct. Cl. _______________________________ 1969).