Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ RESPONDENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: June 3, 1999 _______________________________________________ GSBCA 14932 AT&T COMMUNICATIONS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Richard J. Conway and J. Andrew Jackson of Dickstein Shapiro Morin & Oshinsky LLP, Washington, DC, counsel for Appellant. John E. Cornell and Michael D. Tully, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL and GOODMAN. BORWICK, Board Judge. Respondent, the General Services Administration (GSA), moves to dismiss this case for lack of jurisdiction. Respondent maintains that AT&T Communications' (appellant or AT&T) appeal, filed at the Board on March 19, 1999, was made outside the ninety-day filing limit of the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 606 (Supp. II 1996). Respondent argues that appellant filed a claim with the contracting officer on June 3, 1998; that the contracting officer issued a valid decision on that defectively certified claim on June 11, 1998; and that appellant was obliged to file an appeal within ninety days of receipt of that decision. Appellant filed a certified claim with the contracting officer on November 19, 1998, and received a contracting officer's decision dated January 15, 1999, from which appellant took a timely appeal. Respondent argues that this alleged second claim was simply a quantum amendment of its first validly filed and certified claim and has no effect on the running of the ninety-day time limit commencing on or about June 11. We deny respondent's motion. First, we conclude that appellant did not file a claim with the contracting officer on June 3 because appellant did not intend to, and did not, request a contracting officer's decision. Appellant's submission of June 3 was a discussion document. Second, we conclude that even if the document could be viewed as a "claim," it was not certified as required by the CDA. The blank certification form attached to the document was not a "defective certification." Background The facts presented by the record to date are as follows. This appeal involves appellant's claim that its payment of the Federal Communications Commission's (FCC) Universal Service Fund (USF) charge in delivering service under GSA's FTS 2000 contract is recoverable under the contract's Tax clause as an after-imposed federal tax. The Government disputes that the USF charge is a tax or that the clause applies. On April 6, 1998, the GSA contracting officer wrote appellant that the agency would withhold payment of appellant's invoiced charges for the USF pending finalization of GSA's position on the charge. GSA recognized that the USF issue "was complex and with significant dollar impact on the FTS 2000 contracts." Appeal File, Exhibit 11. The Government invited appellant to submit additional information to assist the Government in resolving the issue. Id. On June 3, 1998, appellant submitted a document which appellant described in its cover letter as a "draft version of AT&T's certifiable claim for UCC [sic] payments pertaining to the referenced contract that have been withheld and disputed by GSA. This draft reflects the certified claim which AT&T is prepared to submit. It is provided in an effort to promote discussion leading to resolution of this dispute." Appeal File, Exhibit 14 (emphasis supplied). The draft was dated "June xx, 1998," and noted that through May 1998, AT&T had invoiced GSA for $8,273,759 in USF charges and that GSA had withheld USF charges from invoice payments. Id., Exhibit 14 at 2. Appellant maintained that the USF is an excise tax and payable under the Tax clause of the FTS 2000 contract. Id. Attached to the draft was the following blank Contract Disputes Act certification form: CONTRACT DISPUTES ACT CERTIFICATION I, [NAME] certify that: (1) the foregoing claim is made in good faith; (2) the supporting data are accurate and complete to the best of my knowledge and belief; (3) the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable; and (4) the undersigned is duly authorized to certify this claim on behalf of AT&T. Sign: ____________________ Type: Title: ____________________ Date: ____________________ Id. On June 11, 1998, the contracting officer issued what he called a "final decision on the question of whether the FTS 2000 contract . . . allows GSA to pay [appellant] for a 4.9% charge added to monthly invoices for contributions the company makes to the [USF]." Appeal File, Exhibit 16. The contracting officer determined that the contract does not allow for reimbursement for three principal reasons: (1) GSA's payment of USF costs would be contrary to the fixed-price nature of the contract and the USF is not a tax under the tax clause. (2) Appellant's contribution to the USF was a continuation of a traditional aspect of appellant's telecommunications operations and had been factored into appellant's cost of the basic rates charged to customers, including the FTS 2000 contract rates. The USF contribution was a restructuring of appellant's pre-existing obligations. (3) To the extent that the FCC's regulatory action regarding the USF caused increased costs, those increases were offset by related cost decreases ordered by the FCC. Id. In that document the contracting officer stated: Also included is the supporting rationale for a related decision regarding the tariff revision which AT&T filed to increase FTS 2000 tariff prices to add a USF charge. . . . It is the Contracting Officer's decision that this revision violates a material term of the FTS 2000 contract and [appellant] is directed to make the necessary revision to remove this charge from the FTS 2000 tariff. Appeal File, Exhibit 16. In the expanded rationale, the contracting officer directed appellant to revise the FCC tariff to eliminate the USF charge and directed appellant to stop including the 4.9 % USF surcharge on its FTS 2000 contract bills. Id., Exhibit 16 at 18. On November 19, 1998, appellant filed a certified claim with the contracting officer seeking recovery of $12,493,609 in USF charges incurred by appellant in connection with the FTS 2000 contract. Appeal File, Exhibit 17. Appellant maintained that it was "entitled to payment pursuant to FAR 52.229-4 because for the purpose of this provision, they are new or increased taxes and they constitute an after-imposed federal excise tax." Id. On January 15, 1999, the contracting officer issued a decision which provided in pertinent part: On November 19, 1998[,] I received from [appellant] your certified claim, entitled "Claim Under Contract Disputes Act Concerning Universal Service Fund Charges Incurred." Your certified claim relates to USF surcharges to GSA's FTS 2000 monthly invoices since the start of 1998. Earlier, on June 11, 1998, I furnished you my contracting officer's final decision that denied USF surcharges based on the contractual provisions of Contract No. GS00K89AHD0008. . . . . Your submission of the 19th does not introduce any new issues or new facts regarding entitlement not already addressed in my Contracting Officer's final decision of June 11, 1998. Your claim is denied for the reasons stated in that decision. This letter, together with GSA letter No 98A034LH.462A dated June 11, 1998[,] and its attached supporting rationale is the final decision of the contracting officer. Appeal File, Exhibit 19. The letter notified appellant of its appeal rights to this Board and notified appellant of the ninety-day time limit from receipt of the decision to file the appeal. Appellant filed its appeal within ninety days after receipt of the decision. In its motion to dismiss, respondent argues: GSA contends that AT&T's "draft claim" of June 3, 1998, is a defectively certified claim, insofar as it was a demand for a sum certain, contained the proper certification language, but was "not executed by a person duly authorized to bind the contractor with respect to the claim." See 48 CFR 33.201. Having denied AT&T's defectively certified claim by addressing AT&T's lack of entitlement to any adjustment for higher USF contributions, AT&T's subsequent quantum revision (and certification) of the claim on November 19, 1998, is of no effect. Respondent's Motion to Dismiss at 5. In that motion, relying on the FAR's definition of "claim" in 48 CFR 33.201 (1998), respondent maintains: The defectively certified claim contained a demand for a sum certain under the contract, a cogent explanation as to why it was entitled to the amount claimed, the proper certification language, and a blank signature following the certification. Having all of these elements, the June 3, 1998, document is not a "non-claim," but instead is a defectively certified claim. Respondent's Motion to Dismiss at 6. Discussion The Contract Disputes Act provides: "All claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision." 41 U.S.C. 605(a) (Supp. II 1996). For the existence of a proper "claim" within the meaning of the CDA, the contractor's submission must not only meet the FAR's definition of the term, but also be submitted to the contracting officer for a decision. Thus, in James M. Ellet Construction Co. v. United States, 93 F.3d 1537, 1544 (Fed. Cir. 1996), the Court refused to recognize the contractor's submission of a termination for convenience settlement proposal as a "claim" because, based on the context of the submission, the contractor submitted the proposal to further settlement negotiations, and not for the purpose of requesting a decision. Similarly, in J&E Salvage Co. v. United States, 37 Fed. Cl. 256 (1997), aff'd, 152 F.3d 945 (Fed. Cir. 1998) (table), the court held that a contractor's letter to the Department of Justice demanding return of items under a contract with the Department of Defense Reutilization and Marketing Office was not a claim within the meaning of the CDA because the letter either explicitly or implicitly evidenced no desire for a decision of the contracting officer. In considering whether a claim exists, boards of contract appeals consider the totality of the previous correspondence between the parties. Holmes & Narvar, Inc., ASBCA 51430, 99-1 BCA 30,131. Here, on April 6, 1998, GSA advised appellant that it would withhold invoiced USF charges until GSA could develop its position on the surcharge. GSA invited AT&T to submit additional information to assist it in resolving the issue. AT&T replied in its letter of June 3 with the "draft claim" attached. The letter states that the submission's purpose was "an effort to promote discussion leading to resolution of this dispute." In other words, the draft claim was merely a discussion document submitted by AT&T in response to GSA's explicit request for further information; AT&T submitted it in the hope of resolving the dispute without having to engage in the formal claim submission process. Contrary to respondent's view of the matter, we do not regard the appellant's letter, or its attachment, as evincing a desire for a contracting officer's decision under the CDA. Furthermore, it is settled that a contracting officer's decision on an uncertified claim does not start the running of the CDA's ninety-day time limit for filing appeals at the Board. 41 U.S.C. 605(c)(1) (Supp. II 1996); 48 CFR 33.207(c) (1997); Lockheed Martin Tactical Defense Systems, GSBCA 14450-COM, 98-1 BCA 29,717. The FAR defines a defective certification to include "a certificate which . . . is not executed by a person duly authorized to bind the contractor with respect to the claim." 48 CFR 33.201. That portion of the FAR does not provide that unsigned certifications are defective. The absence of a signature on a certification renders a certification ineffective. R.W. Electronics Corp., ASBCA 46592, 95-1 BCA 27,327; Land Movers Inc. & O.S. Johnson-Dirt Contractor (JV), Eng BCA 5656, 92-1 BCA 24,473. In addition to being unsigned, the certification form was not dated and did not state the name of any official of AT&T who was attempting to certify a claim. Consequently, appellant's attachment of a blank certification form does not rise to the level of an attempted, but defective, certification. As explained in appellant's cover letter, the negotiation document was "certifiable" but not "certified." Cf. Keydata Systems, Inc. v. Department of the Treasury, GSBCA 14281-TD, 97-2 BCA 29,330 (certification as to matters other than those required by CDA is not a certification for purposes of CDA). It follows that, viewed as a decision on appellant's purported monetary claim, the contracting officer's decision of June 11, 1998, was premature and did not start the running of the ninety-day filing period in 41 U.S.C. 606. Appellant submitted its certified monetary claim on November 19, 1998, and received a contracting officer's decision on January 15, 1999. Appellant filed its appeal at the Board on March 19, well within the CDA's ninety-day time limit for filings appeals with the Board. Although GSA does not explicitly argue that the contracting officer's "decision" of June 11 was a Government claim, appellant, out of an abundance of caution, argues that it was not. Appellant maintains that when the purpose of a contracting officer's decision is to determine entitlement to the payment of money under a contract, the decision does not qualify as a Government claim for CDA purposes unless it seeks or denies payment of a sum certain. The decision of June 11 found that AT&T's revised tariff violated a material term of the contract, directed appellant to remove USF charges from its FTS 2000 contract tariff, and directed appellant not to submit invoices for the USF charge. Whether or not the decision could be properly viewed as a Government claim under 48 CFR 33.201, Garrett v. General Electric Co., 987 F2d 747 (Fed. Cir. 1993), presents an interesting question. This issue, however, does not prevent us from taking jurisdiction over appellant's separate monetary claim of November 19, 1998, which is properly before us. That claim was the subject of the contracting officer's decision of January 15, 1999, and was timely appealed to this Board. Decision For the above reasons, respondent's motion to dismiss for lack of jurisdiction is DENIED. __________________________ ANTHONY S. BORWICK Board Judge We concur: __________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge