Agency Argued Claim Wasn’t Certified Because Certification Language Was Attached to the Claim Letter. Why Did ASBCA Let It Slide?

The government argued that the contractor's claim was not certified because the certification language was attached to the claim letter. The ASBCA said this was "a close call" and warned that such a practice should not be emulated. However, it found that, based on the surrounding facts, the attached certification was valid.

Appeal of KiewitPhelps, ASBCA No. 62980

• Motion - The Army Corps of Engineers (the government) moved to dismiss the appeal for lack of jurisdiction, claiming the appellant submitted an uncertified claim to the contracting officer. The appellant disagreed, arguing it did so and further arguing it also submitted another certification in response to a request from the Defense Contract Audit Agency (DCAA).
• Attached Certification - The question was whether a signature by an authorized official on a claim letter still counts if the actual certification language is part of an attachment. ASBCA admitted this was a close call, and it cautioned that such a practice should not be emulated. However, the Board concluded the signature was sufficiently linked to the certification language to be an operative execution of the certification.
• Corrected Certification to DCAA: Even if the claim were uncertified, the Board would have still held that the issue was remedied when the appellant submitted a directly signed certification to DCAA. The appellant had reason to believe DCAA was acting on behalf of the contracting officer when DCAA requested a corrected certification.

Vivian Katsantonis, Christopher M. Harris, and John F. Finnegan, III of Watt, Tieder, Hoffar & Fitzgerald, LLP; and Michael A. Branca of Peckar & Abramson, PC appeared for the appellant. Michael P. Goodman, James M. Pakiz, William G. Latka, James J. Irvine, and Jacob W. Harberg of the Army appeared for the government.

-- Case summary by Joshua Lim, Assistant Editor.