Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ DISMISSED FOR LACK OF JURISDICTION: April 16, 1998 _______________________________________________ GSBCA 14450-COM LOCKHEED MARTIN TACTICAL DEFENSE SYSTEMS (Formerly LORAL DEFENSE SYSTEMS), Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Thomas J. Touhey of Kilcullen, Wilson and Kilcullen, Chartered, Washington, DC, counsel for Appellant. Edward J. Weber, Terry H. Lee, and Jerry A. Walz, Contract Law Division, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and PARKER. BORWICK, Board Judge. Respondent, United States Department of Commerce (DOC), moves to dismiss Lockheed Martin Tactical Defense Systems's (Lockheed's or appellant's) appeal of January 8, 1998, for lack of jurisdiction. For the reasons stated below, we grant respon- dent's motion. This matter began when appellant submitted to the DOC contracting officer its request for equitable adjustment (REA) of August 5, 1996, for $864,221 as extra costs arising from alleged deficient road conditions at Elko, Nevada. Appellant submitted its REA under contract 50-DMNW-8-00032 for the construction of one hundred fifty-eight operational advanced Doppler weather radar sites throughout the United States and overseas, to support the National Oceanic and Atmospheric Administration's (NOAA's) Next Generation Weather Radar (NEXRAD) system. Appellant's Manager of Contracts, NEXRAD/Trident/Ocean Systems submitted the REA for appellant and two subcontractors, TASC, Inc. (TASC) and Lowe-North Construction Inc. (Lowe-North). The REA consists of three enclosures: (A) a "Request for Equita- ble Adjustment for Unsuitable Government provided Access Road at Elko, Nevada," (B) "TASC Claim for 'Deficient Road Conditions at Elko'," and (C) "Actual Stone From Elko Road." Enclosure (A) includes a cover letter of August 5, 1996, signed by appellant's Manager of Contracts, and six separate sections. In the cover letter, appellant's Manager of Contracts states in pertinent part: This REA is comprised of the following three elements: (i) Lockheed Martin's own additional costs associated with the unsuitable road provided by the Government at the Elko site; (ii) Lowe[-]North's costs resulting from the same road conditions; and (iii) TASC, Inc.'s certi- fied claim, submitted to Lockheed Martin in accordance with the provisions of FAR [Federal Acquisition Regula- tion] 52.233-1 "Disputes" and Article 48 of the NEXRAD General Provisions that were incorporated into this Purchase Order. We briefly summarize sections one through five of Enclosure (A) and separately describe section six, since that section is relevant to respondent's motion to dismiss. Section one is a contract proposal pricing sheet (Standard Form 1411), with summary pricing data, in which appellant seeks a total of $864,- 221 for appellant' s and its subcontractors' pricing of the work arising from the allegedly deficient road conditions at Elko. Section two describes labor rates, forecasted labor rates, and overhead and general and administrative structure. Section three provides a work breakdown structure, while section four describes the labor input to the task and section five describes other direct costs. In section six, appellant summarized the claims of its two subcontractors, Lowe-North and TASC, and submitted claims propos- als from both. Appellant also submitted a letter of June 12, 1996, from the President of TASC to appellant's Manager of Subcontracts for Weather Systems, which letter reproduced the certification language of the Contract Disputes Act, 41 U.S.C. 605(c)(1) (1994). Appellant did not provide its own certification to the contracting officer either in its REA, in the cover letter in Enclosure (A), or in any subsequent section to Enclosure A. Instead, appellant's Manager of Contracts advised the contract- ing officer: To summarize, [appellant] has reviewed TASC's certified claim and, based on our analysis of the data presented, we consider it to qualify for certification under FAR 52-233-1. As you can see from the correspondence and the analysis included in this package, it seems to us that entitlement has been well-established and the only area where further discussion is necessary is in quan- tum. Enclosure (B) is a detailed presentation of TASC's claim; that enclosure contains TASC's letter to appellant of June 12, which appellant calls "TASC claim certification." On October 14, 1997, the contracting officer issued his "final decision" denying the claim for alleged deficient road conditions, without considering whether Lockheed certified the claim. Discussion The Board lacks jurisdiction of this appeal because under the CDA and the FAR, this Board lacks jurisdiction over appeals from denials of uncertified contractor claims in excess of $100,000. The CDA provides in pertinent part: For claims of more than $100,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor. 41 U.S.C. 605(c)(1). The implementing FAR provision repeats the statutory lan- guage quoted immediately above as the required contractor certif- ication. 48 CFR 33.207(c) (1996). Another FAR provision, 52.233-1, included as the disputes clause in Federal contracts, provides that "contractors shall provide the certification specified [in another section] when submitting any claim (A) Exceeding $100,000. . . ." 48 CFR 52.233-1(d)(2)(i). The certification may be executed by any person duly authorized to bind the contractor with respect to the claim. 48 CFR 52.233- 1(d)(3). It is settled that in the case of contractor claims, certif- ication is necessary for there to be a valid claim and as a jurisdictional prerequisite under the CDA to a direct challenge to a contracting officer's decision. United States v. Turner Construction Co., 827 F.2d 1554, 1558 (Fed. Cir. 1987) (citing Paul E. Lehman Inc. v. United States, 673 F.2d 352 (Ct. Cl. (1982)). Furthermore, the CDA and the FAR require a contractor, as defined by the CDA, to certify claims. The CDA defines contractor as the party to a Government contract other than the Government. 41 U.S.C. 601(4). That party is the entity in contractual privity with the Government, and, except for unusual circumstances or special factors, is the prime contractor. United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551, 1557 (Fed. Cir. 1983).[foot #] 1 Consequently, we have consistently held that a subcontractor's certification of a claim is not sufficient to establish jurisdiction to entertain a claim under the CDA. Thermodyn Contractors, Inc. v. General Services Administration, GSBCA 11911, 93-1 BCA 25,408, at 126,598; Harrington Associates, Inc. GSBCA 6795, 82-2 BCA 16,103; see William F. Kligensmith, Inc., GSBCA 5506, et al., 83-2 BCA 16,852. Here, the prime contractor is Lockheed and Lockheed is the contractor within the meaning of the CDA and the FAR which must certify the claim to the contracting officer. Lockheed did not certify the claim that is the subject of this appeal; instead, Lockheed forwarded to the contracting officer subcontractor TASC's certification of part of the claim, and stated that TASC's claim qualified for certification. These actions do not confer jurisdiction on the Board to hear the appeal. Lockheed's state- ment that TASC's claim qualified for certification is not itself a certification. In opposing DOC's motion to dismiss, appellant states that on February 18, 1998, it submitted a revised claim, which is substantially the same as the claim appealed from, but that the revised claim "was properly certified as required by the [Con- tract Disputes] Act on the same date." Appellant's Opposition to Respondent's Motion to Dismiss (Appellant's Opposition) at 1. The revised claim is indeed certified by the Vice President, Ocean Radar, Lockheed Martin Ocean Radar and Sensor Systems. Appellant's Opposition, Exhibit B. Appellant argues that "there is no judicial economy to be obtained by dismissal of an appeal for lack of jurisdiction based upon a deficient certification (or the absence of a certif- ication as the case may be) when the contractor's claim has now been properly certified under the [Contract Disputes] Act." We do not agree with appellant that its failure to certify is merely the result of a deficient or defective certification. The CDA provides that a defect in the certification of a claim shall not deprive an agency board of jurisdiction over that claim, but that prior to the entry of a decision by a board, the ----------- FOOTNOTE BEGINS --------- [foot #] 1 Under special circumstances, a subcontractor may be in contractual privity with the Government: when (1) the prime contractor is acting as a purchasing agent for the Government, (2) the agency relationship between the Government and the prime contractor was established by clear contractual consent, and (3) the contract states that the Government will be directly liable to the subcontractor/vendor for the purchase price. Johnson _______ Controls, 713 F.2d at 1551. There is no suggestion or showing ________ that these special factors apply here so as to make TASC or Lowe- North the Government contractors. ----------- FOOTNOTE ENDS ----------- board shall require a defective certification to be corrected. 41 U.S.C. 605(c)(6). The FAR provides, however, that failure to certify shall not be deemed a defective certification. 48 CFR 33.201; Cf. Keydata Systems, Inc. v. Department of the Treasury, GSBCA 14281-TD, 97-2 BCA 29,330. We do not consider Lockheed's failure to certify to be a defective certification, permitting us to retain jurisdiction. Appellant further argues that the appeal should not be dismissed at this time, but rather, that the Board should either deny respondent's motion or withhold ruling on the motion pending the contracting officer's denial of appellant's newly certified claim and appellant's filing of an appeal from that denial. Appellant's Opposition at 2. This suggests that the Board retain jurisdiction through a Hamilton stipulation. The court in Hamilton Enterprises v. United States, 711 F.2d 1038 (Fed. Cir. 1983) approved board retention of jurisdiction over uncertified claims if the parties could enter the appropri- ate stipulation. What has become known as the Hamilton stipula- tion requires that: (1) the contractor present to the contracting officer an appropriate certified claim encompassing the exact facts and legal arguments as those of the uncertified claim; (2) the contracting officer, upon receipt of the certified claim, determines he or she would deny the claim for the same reasons upon which he or she denied the uncertified claim; (3) both parties then assert that neither their positions nor their presentations of evidence would be different in either the uncertified or certified claims. See Carothers & Carothers Co., ENG BCA 4739, 88-3 BCA 21,161, at 106,815. Respondent has compared the old uncertified and the new revised certified claims and has found significant differences between the two, particu- larly regarding revised claim amounts for the subcontractors. Respondent also states that the revised certified claim contains supporting documentation and materials that were omitted in the certified claim. Respondent, therefore, cannot stipulate that the contracting officer will deny the certified claim on the same basis that he denied the uncertified claim. Respondent's Reply to Appellant's Opposition to Respondent's Motion to Dismiss (Respondent's Reply) at 2-3. Appellant maintains the claims are not that different, but the disagreement is irrelevant. Respon- dent will not agree to a Hamilton stipulation, and the Board cannot force one party unwillingly to enter into such a stipula- tion. Carothers. Therefore, this appeal must be dismissed. Decision This appeal is DISMISSED for lack of jurisdiction. __________________________ ANTHONY S. BORWICK Board Judge We concur: ___________________________ ____________________________ EDWIN B. NEILL ROBERT W. PARKER Board Judge Board Judge