How Much Knowledge About the Government’s Alleged Liability Must One Possess to Certify a Claim?

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The CDA requires a claimant to certify that the data supporting a claim is accurate and complete to the best of the contractor’s knowledge. In this case, the government alleged that the person certifying the claim lacked sufficient knowledge of the government’s liability, so the claim was invalid. The board rejected the government’s argument. The CDA only requires that the certifying person have knowledge that the data supporting the claim is correct. It does not require the certifying person to have personal knowledge sufficient to respond to discovery requests.

Appeals of Sungwoo E&C, Co. Ltd., ASBCA Nos. 61144, 61219, 62738

Background

Sungwoo E&C Co. Ltd. had a contract with the Army for construction services in South Korea. Sungwoo submitted two claims in 2016. One claim challenged CPARS assessed to Sungwoo. The other claim was for money damages. 

The Army apparently denied those claims, and by 2020 they were on appeal to the ASBCA. The Army moved to dismiss the appeals for lack of jurisdiction, alleginging they had been certified by Sungwoo’s attorney and thus had not been properly certified by someone with authority to bind the company. After litigating this issue for a few months, Sungwoo submitted a power of attorney to the board, which gave the company’s attorney authority to executive all certifications for the claims. Sungwoo’s attorney then submitted a new certification for the monetary claim.

The government renewed its motion to dismiss. The government still maintained that Sungwoo’s attorney could not properly certify the claim. The government also added a new argument—i.e., that Sungwoo lacked authority to submit the claims because it was in receivership in South Korea.

Legal Analysis

Claim Relating to CPARS

The board quickly disposed of the government’s motion related to Sungwoo’s CPARs claim. The CDA only requires certification of claims valued at $100,000 or more. The CPARs claim did not seek monetary damages. Consequently, no certification was required. The government’s motion as to this claim was denied.

Claim for Monetary Damages

For the money damages claim, the government contended that Sungwoo’s attorney lacked authority to bind the company because he was not a duly authorized corporate officer of the company. The court rejected this. Sungwoo had executed a power of attorney in 2021 that clearly gave the attorney authority to certify the claim. There is nothing in the CDA that prohibits a lawyer from certifying a claim. Moreover, there is no requirement that the person providing the certification be an employee of the contractor or involved in performance of the contract.

The government also argued that a claim must be certified by someone with knowelege of the government’s liability. The government claimed that Sungwoo’s attorney lacked this knowledge. The board, however, found that the CDA merely requires that the certification include a statement that the supporting data are accurate and complete to the best knowledge and belief of the contractor. There is no requirement that the certifying individual have personal knowledge of the details of the claim so that they could respond to the government’s discovery requests.

Receivership

The government argued that Sungwoo could not bring a claim because it was in receivership in South Korea. Under South Korean insolvency law, a company in receivership must seek permission from a court before filing a lawsuit or performing other acts designated by a court. The board, however, noted that the receivership had ended. Even if the receivership had still been pending, the board did not believe that Korean law prevented a company in receivership from certifying a claim.

Sungwoo is represented by Yong Eui Song of Chung Jin Law Office. The government is represented by Scott N. Flesch and Dana J. Chase of the Amy.

ASBCA - Sungwoo E&C Co.