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For Government Contractors: Unsigned Claim Certification Is an Incurable Defect

Business

By Amandeep S. Kahlon, Bradley

In September, the Armed Services Board of Contract Appeals (ASBCA) addressed the certification requirements under the Contract Disputes Act (CDA). A motion to dismiss by the U.S. Government prompted the ASBCA to consider whether the claimant’s typewritten name in the claim certification invalidated the Board’s jurisdiction over the dispute. Based on prior decisions, the ASBCA sided with the Government concluding that an unsigned certification was insufficient to bestow jurisdiction under the CDA and FAR.

The contractor in this appeal contracted with the Government in 2011 to build a dining facility in Kyrgystan. In 2014, the Government issued a suspension of work notice. Two years later, the contractor submitted a claim to the contracting officer for withheld payments and included the following certification language in its transmittal email:

“I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.”

The contractor’s certification transmittal included a typewritten name in the signature block of the email but, notably, did not include a digital or handwritten signature of any kind. Subsequent negotiations between the contractor and the Government were unsuccessful, and the contractor ultimately filed an appeal with the ASBCA arising out of a deemed denial of its claim.

The Government moved to dismiss the contractor’s claim arguing that the contractor’s certification was improper under the CDA because it lacked a signature rendering the claim void and depriving the ASBCA of jurisdiction to hear the appeal. The ASBCA noted that the FAR mandates that any certification under the CDA must be executed by a “person duly authorized to bind the contractor.” Based on prior Board decisions, the ASBCA further concluded that “execution” requires a signature or a “discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of that individual, indicates a present intent to authenticate the writing.” The ASBCA acknowledged that a signature could be digital and need not be handwritten.

With respect to the contractor in the present appeal, the ASBCA held that the typewritten name in the signature block was insufficient to satisfy the “execution” requirements under the CDA and FAR. The ASBCA rejected the contractor’s argument that the parties’ practice was to accept each other’s signature block as an “email signature” noting that the parties’ course of dealing cannot overcome the certification “execution” requirements and that parties cannot confer jurisdiction by agreement. In accordance with past decisions, the Board also rejected the contractor’s argument that its invalid signature could be corrected and applied retroactively to the claim.

Compliance with the CDA requirements and applicable FAR provisions is crucial when submitting a claim to the Government. As this case illustrates, technical defects in compliance may be fatal to an otherwise valid claim. To avoid mishaps such as the one described above, contractors should be ever mindful of these requirements throughout the claims submission process. That’s why it’s important to invest in experienced and knowledgeable project managers and contract administrators and why it can be valuable to have a skilled government contracts attorney involved early on in the development of the claim. In the appeal above, the ASBCA noted that the contractor did not retain counsel until after it had filed its appeal with the ASBCA. Had the contractor consulted with an attorney prior to submitting its certified claim, it might have avoided the signature defect and the resulting dismissal of its appeal.

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