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Government’s motion to dismiss appeal for lack of jurisdiction is denied. The government argued that the contractor’s certification of the claim, which confusingly referred to a change order request and not the actual claim, was deficient and thus the board lacked jurisdiction under the CDA. The board found that from the totality of the circumstances, it was clear which claim the contractor had attempted to certify. At most, the certification was merely defective; it was not so deficient as to deprive the board of jurisdiction.

Wright Brothers, the Building Company had a contract with the Air Force to renovate a building on a base in North Dakota. In May 2019, after Wright Brothers had finished the work, the company sent a letter to the Air Force seeking an equitable adjustment for purported delays. The letter referenced a certain change order request in the amount of $753,816. Attached to the letter was a certification, which referenced the same change order. The certification, however, was not signed.

The contractor officer asked Wright Brothers to clarify whether the company had submitted a request for equitable adjustment or a claim. Wright Brothers responded in July 2019, stating that it had intended submit a certified claim, but it had failed to properly execute (sign) the claim submitted with the May 2019 letter. Wright Brothers provided the Air Force with another certification, which contained language identical to the May certification. This time, however, the certification was signed.

About a month after submitting the second, signed certification, Wright Brothers asked the Air Force to confirm that any deficiency in the initial certification had been cured by the July 2019 signed certification. The Air Force responded that the government considered the claim to have been cured by the July 2019 signed certification.

Thereafter the parties negotiated and settled a portion of the $750,000 claim. They were, however, unable to agree on $455,000 of the claim. Wright Brothers appealed to the ASBCA seeking to recover the remaining $455,000. The Air Force moved to dismiss the appeal, alleging that it had been improperly certified and thus the board lacked jurisdiction.

In its motion, the government asserted that the certification was fatally defective. The July 2019 certification was the only one that was signed. But that certification referenced a previous change of order request; it did not reference the unsigned May 2019 certification. Because the July 2019 certification referenced a different date, the government argued, there was no evidence it actually corresponded to a claim.

The board rejected this argument. Wright Brothers submitted an unsigned certification in May 2019. The contracting officer sought clarification as whether it was a claim. Wright Brother confirmed that it was a claim and submitted a new signed certification in July 2019. The contracting officer confirmed that the July 2019 certification cured the May 2019 certification. The totality of the circumstances indicated that Wright Brothers had submitted a certified claims.

The government attempted to argue that the proper certification was lacking because Wright Brothers had made uncertified updates to its claims prior to the agency’s final decision on the claim. The board, however, found that those updates were the results of negotiations between the parties that reduced the amount in controversy. The items that remained in dispute after negotiations were the same items that had been raised in the unsigned May 2019 claim. The updates to the claim, therefore, did not require any additional certification.

Although the board found that the certification was not fatally flawed, it was defective. Wright Brothers had included language in the certification—specifically, the reference to the change order request—that was not required or specified in the Contract Disputes Act. Moreover, the certification also claimed that it was made pursuant to 10 U.S.C. § 2410. But that statute concerns certifications for request for equitable adjustments, not for claims. The board ordered Wright Brothers to correct these certification defects prior to any decision on the merits.

Wright Brothers is represented by Samuel A. Diddle of Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd. The government is represented by Jeffrey P. Hildebrant and Lori R. Shapiro of the Air Force.