March 3, 2021

By: Lori Ann Lange, Partner Peckar & Abramson, P.C.

As construction contractors know, claims and disputes are common on federal government construction projects. However, as is typical of government work, there are byzantine rules and regulations for pursuing claims against the federal government which you must understand and follow to be successful. As some recent board of contract appeals and Court of Federal Claims cases remind us, the failure to comply with these requirements can result in the contractor losing its claim rights.

The Federal Acquisition Regulation (“FAR”) defines a “claim” as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract”. FAR 2.101. The Contract Disputes Act of 1978 (CDA) further requires that each claim by a contractor against the Federal Government relating to a contract be in writing and be submitted to the Contracting Officer for a decision. 41 U.S.C. § 7103. If the claim is greater than $100,000, the contractor must certify that: (a) the claim is made in good faith; (b) the supporting data are accurate and complete to the best of the contractor’s knowledge and belief; (c) the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and (d) the certifier is authorized to certify the claim on behalf of the contractor. 41 U.S.C. § 7103(b)(1).

So why do you care whether your submission meets the technical requirements of a claim? Because, if it does not meet those requirements, the submission cannot be pursued before a Board of Contract Appeals or in the Court of Federal Claims, and it will not trigger the interest clock. Below are some tips for ensuring that your claim meets the CDA and FAR requirements.

1.         Make sure your claim is for a sum certain. Claims for monetary relief must be in a sum certain. In other words, there should be a clear and unequivocal statement that gives the Contracting Officer adequate notice of the basis and dollar amount of the claim. See, Sweet Star Logistic Service, ASBCA No. 62082, 20-1 BCA ¶ 37704 (2020); SRA International, Inc. v. Department of State, CBCA No. 6563, 20-1 BCA ¶ 37,543 (2020); Sarro & Associates, Inc. v. United States, Case No. 19-691C, 2021 WL 140556 (Jan. 15, 2021). The Boards and Court lack jurisdiction over claims where the amount requested is not certain or the contractor “hedged” on the amount sought. See generally, Constellation NewEnergy, Inc., ASBCA No. 62518, 2020 WL 8148703 (Dec. 8, 2020). Statements that the contractor is seeking an approximate amount of damages can result in the appeal being dismissed. On the other hand, if the amount of damages can be calculated, such as when the contractor seeks a daily rate for delay and specifies the number of days, the sum certain requirement is met. To avoid potential issues, it is safer to submit a single dollar amount without any hedge words that could be construed to make the amount uncertain. The claim amount can be adjusted if new and additional information becomes available. 

2.         Make sure your claim requests a Contracting Officer’s final decision. Although a contractor is not required to explicitly request a final decision, the contractor’s claim must indicate that the contractor is seeking a final decision on the claim. See, Aron Security, Inc. v. Department of the Interior, CBCA No. 6664, 20-1 BCA ¶ 37,603 (2020); Naseem Al-Oula Co., ASBCA No. 61321, 20-1 BCA ¶ 37,490 (2019). No magic words are required, just a statement that indicates that the contractor wants the Contracting Officer to make a decision on the claim. In Zafer Construction Co. v. United States, No. 19-673C, 2020 WL 7767590 (Fed. Cl. Dec. 30, 2020), the court held that submission of a request for equitable adjustment did not meet the requirement to submit a claim because it did not contain any indication that the contractor wanted a final decision but merely stated that it was being submitted so the parties could negotiate. To avoid potential issues disputes, it is safer to specifically request that the Contracting Officer issue a final decision, although you can at the same time offer to negotiate or provide additional information.

3.         Make sure you properly certify the claim if it is over $100,000. When the claim is over $100,000, it must be certified by the contractor. FAR 33.207(c) contains the language that the contractor should use to certify its claim. If the contractor substantively deviates from that language or the certification is not executed by someone authorized to bind the contractor, the certification will be considered defective. FAR 33.201. A defective contractor certification will not deprive the board or court of jurisdiction over the contractor’s claim, but the defective certification will have to be corrected. 41 U.S.C. § 7103(b)(3). If the contractor fails to execute a certification at all, however, the board or court will have no jurisdiction over the claim. See, Kirlin Builders, LLC, ASBCA No. 61901, 20-1 BCA ¶ 37,485 (2019). To avoid potential issues as to whether the certification is proper, it is safer for you to use the exact language contained in FAR 33.207(c).

4.         Make sure the claim certification is properly signed. As noted above, claims in excess of $100,000 must be certified and the certification must be signed by someone authorized to bind the contractor. While the CDA does not define “signature”, the FAR defines it as “the discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. This includes electronic symbols”. FAR 2.101. In Kamaludin Slyman CSC, ASBCA No. 62006, 20-1 BCA ¶ 37,694 (2020), the ASBCA held that any mark purporting to act as a signature will count as a signature for purposes of the CDA whether it is signed in ink, through a digital signature application, or a typed name if it can be traced back to the individual making it. The decision overruled previous ASBCA cases that precluded the use of typed names as signatures. It remains to be seen whether the CBCA and the Court of Federal Claims will follow suit. To avoid potential issues, it is safer to have your certification signed in ink.

5.         Make sure you submit your claim to the Contracting Officer. While contractors often deal with government representatives other than the Contracting Officer, such as the Contracting Officer’s Representatives (“CORs”) and Contracting Officer’s Technical Representatives (“COTRs”), in contract administration matters, the CDA requires that claims actually be submitted to the Contracting Officer. 41 U.S.C. § 7103(a)(1). If you submit your claim to someone other than the Contracting Officer, you run the risk that the Contracting Officer will not receive the claim.

6.         Make sure you submit your claim within the CDA’s statute of limitation. Under the CDA, a contractor must submit its claim within six years of when the claim accrues even when the contractor still is negotiating with the Government. 41 U.S.C. § 7103(a)(4). A claim for payment accrues on the date when all events that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known. FAR 33.201. In Anis Avasta Construction Co., ASBCA No. 61926, 20-1 BCA ¶ 37,743 (2020), the ASBCA held that a contractor’s claim for payment accrued when the contract work was completed. Since the contractor submitted its claim more than six years after the work was completed, its claim was untimely. While the statute of limitations is for a long period of time, it can sneak up on an unwary contractor. To be safe, make sure that you track the statute of limitations and expeditiously pursue your rights.

7.         Make sure you timely appeal from the Contracting Officer’s final decision. Under the CDA, a contractor can appeal to either the appropriate board or the court. To appeal to the board, the contractor must file a notice of appeal within 90 days of its receipt of the Contracting Officer’s final decision. 41 U.S.C. § 7104(a). To appeal to the Court of Federal Claims, the contractor must file suit within 12 months of the date of receipt of the Contracting Officer’s final decision. 41 U.S.C. § 7104(b)(3). Failure to comply with these deadlines is fatal to the contractor’s claims. See, DCX-Chol Enterprises, Inc., ASBCA No. 62453, 20-1 BCA ¶ 37,722 (2020) (the board does not possess jurisdiction to hear an appeal when a contractor fails to file a notice of appeal within 90 days of its receipt of the Contracting Officer’s final decision); JAF Supply, Inc., CBCA No. 6934, 2020 WL 6817693 (Nov. 16, 2020), (failure to timely file an appeal is a jurisdictional defect that precludes the board from entertaining the appeal); Sandstone Associates, Inc. v. United States,146 Fed. Cl. 109 (2019) (statutes of limitations, such as contained in the CDA, are waivers of sovereign immunity and thus must be strictly construed).

To be successful in pursuing a claim against the Federal Government, you need to understand the rules and regulations and follow them. If you do not follow the rules and regulations, you run the risk that your claim may be waived or the board or court will not take your appeal.

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