Appeal Sought More than $100,000 But Underlying Claim Sought Less, So Failure to Certify Didn’t Deprive CBCA of Jurisdiction; Nues Inc v. Department of Health and Human Services, CBCA 7165


Government’s motion to dismiss for lack of jurisdiction is denied. The contractor submitted an uncertified claim for $92,000 but on appeal sought $112,000. Reasoning that claims over $100,000 must be certified, the government argued the board lacked jurisdiction over the uncertified claim. The board, however, reasoned that the claim as initially asserted was under $100,000 and thus did not need to be certified. The fact that the amount sought increased on appeal did not affect the board’s jurisdiction over the appeal.

Nues Inc. had a contract with the Centers of Disease Control to support the Tuberculosis Trials Consortium in South Africa. CDC terminated the contract for convenience.

Nues submitted a termination settlement proposal seeking $92,000. The CDC offered to pay Nues only $17,000. Nues submitted SF 1436, the form for a settlement proposal, and requested a final decision on its proposal. The CDC did not issue a final decision. Nues appealed the deemed denial to the CBCA. In its complaint on appeal, Nues sought $112,000.

The CDC moved to dismiss the appeal for lack of jurisdiction. The CDA requires that claims over $100,000 must be certified. Here, the government argued, Nues sought more than $100,000 but had not certified its claim, so the board lacked jurisdiction.

The board, however, noted that Nues initial claim had been for only $92,000, so it did not need to be certified. The increase in the amount sought on appeal did not arise out of different operative facts and did not constitute a new claim. An uncertified claim requesting less than $100,000 need not be certified even if it increases on appeal. What’s more, the board reasoned, the submission of SF 1436 likely constitute certification of the claim anyway.

Nues is represented by its CEO, Seun Oyewo. The government is represented by Robert E. Nerthling, II and Elise Harris of the Department of Health and Human Services.

CBCA - Nues Inc.