Government Contracts Board Erred in Ruling Certification Could Not Be Corrected
Monday, February 3, 2020

Board Erred in Ruling Certification Could Not Be Corrected

By Government Contracts Editorial Staff

The Court of Appeals for the Federal Circuit reversed and remanded a board’s dismissal of an appeal because the Contract Disputes Act does not limit correctable certification defects to those that are technical in nature or prohibit correction of a certification made with “intentional, reckless, or negligent disregard” for certification requirements. The contractor, which provided developmental services in Afghanistan, submitted to the contracting officer five subcontractor claims for reimbursement of nearly $2 million in fines imposed by the Afghanistan government. After the CO responded that the submission did not contain a proper certification, the contractor appealed to the Civilian Board of Contract Appeals. In dismissing the claims for lack of jurisdiction, the board found the contractor’s certification did not resemble the language required under 41 USC 7103(a)(1) (see FAR 33.207(c)), and the nontechnical mistakes in the certification and the contractor’s recklessness rendered the certification unsalvageable (18-1 BCA ¶37,147).

Rejected Language. However, the board relied on the text of an unenacted version of the statute. Section 7103(b)(3) mentions “defective certification[s]” without reference to the technical nature of the defect or mens rea. A statute should not be read to implicitly include language that Congress specifically rejected. The board’s statement to the contrary was inconsistent with the plain language of §7103(b)(3), which states that “[a] defect in the certification of a claim does not deprive a court or … board of jurisdiction over the claim.” The contractor submitted the subcontractor’s certification, which mirrored the language required by FAR 33.207(c), and a cover letter stating the contractor’s belief there was a “sound basis for these claims.” The cover letter also expressly stated it was an attempt to comply with the CDA, and taken together, the two documents were sufficient to constitute a defective certification. Because the contractor did not receive notice of the defect within 60 days and the CO failed to issue a decision, the contractor’s claim was deemed denied and was appealable to the board. (DAI Global, LLC, et al. v. Agency for Int’l Development, CA-FC, 64 CCF ¶81,819)

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