Agency’s motion to dismiss contractor’s appeal is denied. The contractor appealed from the agency’s denial of a request for equitable adjustment (REA). The agency argued that because the REA did not have all the elements of a certified claim under the Contract Disputes Act, the ASBCA lacked jurisdiction. Because the REA constituted a defective—rather than a non-existent—certification, the contractor was permitted to correct the certification. And because the contractor corrected the certification before the issuance of a decision, the board had jurisdiction over the appeal.
Kirlin Builders submitted a request for equitable adjustment to the Army for costs arising out of contract to repair a chiller plant. Kirlin certified the REA in accordance with statute and the DFARS. The Army denied the REA, and Kirlin appealed to the ASBCA.
Although Kirlin’s REA complied with the REA certification requirements, it did not comply with the elements for a certified claim under the Contract Disputes Act. Specifically, Kirlin’s REA did not state that the amount requested accurately reflected the contract adjustment for which the government was liable, and it was not signed by a person authorized to certify a claim on behalf of Kirlin. Thus, following its appeal, Kirlin submitted a new certification to satisfy the elements required under the CDA. The Army, however, moved to dismiss Kirlin’s appeal, contending that because the original REA did not comply with the CDA, the board lacked jurisdiction.
The board rejected the Army’s argument. To be sure, the board’s jurisdiction under the CDA is dependent on the submission of a proper claim. But the CDA, at 41 U.S.C. § 7103(b), states that “a defect in certification does not deprive an agency board jurisdiction over the claim” so long as the defect is corrected before the board’s decision. The complete absence of a certified claim, however, cannot be corrected and is fatal the board’s jurisdiction.
Here, Kirlin appealed from denial of a properly certified REA. An REA does not reflect the complete absence of CDA certification because it provides the government with some of the required elements of CDA certification. Thus, an REA certification can be corrected to conform to the CDA. Because Kirlin corrected the certification before the issuance of a decision, the board had jurisdiction over the claim.
Kirlin is represented by Douglas L. Patin and Lee-Ann C. Brown of Bradley Arant Boult Cumming LLP. The government is represented by Michael P. Goodman and Michael L. Graves of the U.S. Army.
