It’s in There Somewhere: ASBCA Rejects Contractor’s Implied Claim Certification Theory; Appeals of Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008

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Government’s motion for summary judgment alleging that claim was barred by statute of limitations is granted. The contractor submitted a claim letter that lacked certification language required by the CDA. The contractor did not attempt to submit a proper certified until more than six years after the claim accrued. The contractor alleged the claim letter it initially submitted contained an implicit certification. The board rejected the contractor’s implied certification theory, finding that it contravened the CDA, which requires express certification. Alternatively, the contractor alleged that its initial claim was merely defective. The board, however, found that the exception for defective claims did not apply. There was simply nothing in the claim letter even purporting to be a certification that could reach the threshold of being defective.

Kamaludin Slydin, CSC executed a contract with the government for the lease of heavy equipment at Firebase Maholic in Afghanistan The lease permitted the government to use the equipment through June 30, 2012.

Shortly after executing the Maholic contract, Kamaludin executed another lease with the government for equipment to be used at Village Support Platform Chenar in Afghanistan. The Chenar lease ended June 15, 2012.

Instead of returning the equipment in June 2012 as required by the lease, the government kept it for an additional five months. Kamaludin sent the government invoices for the held-over equipment. The government asked Kamaludin to submit a certification letter for the invoices. Kamaludin sent the government “letters of claim” for each lease on March 16, 2013. For the Chenar contract, Kamaludin sought $55,000 for the hold-over of equipment. For the Maholic contract, Kamaludin requested $155,000. The letters did not contain the claim certification language required by the Contract Disputes Act.

The government, however, did not do much to resolve the claims. Kamaludin followed up with emails in 2014 and 2015 but to no avail. Later, in March 2019, Kamaludin sent an email to the contracting officer attempting to retroactively apply the CDA’s certification language to the 2013 claim letters. Three days later, without waiting for a decision by the contracting officer, Kamaludin appealed its claims to the ASBCA.

The government moved to dismiss the appeal of the Maholic claim due to lack of signature on the certification. In a separate decision, the board held that the typed signature on the letter satisfied the CDA. Following the decision on the signature, the government moved to dismiss the Chenar claim for failure to state a claim and moved for summary judgment on the Maholic claim.

In its motion to dismiss the Chenar claim, the government argued that the claim failed to allege a breach. In the claim, Kamaludin had alleged that the government had made the equipment inaccessible. The government contended this was not a breach because it had left the equipment in the location intended by the contract.

The board noted that the a portion of the Chenar claim alleged that the government had left the equipment in an inaccessible location. Nevertheless, the board reasoned, this allegation was more of generalized complaint about the circumstances presented to Kamaludin. The second paragraph of Kamaludin’s claim letter contained the meat of its claim. In that paragraph, Kamaludin clearly alleged that the government had kept the equipment past the time allowed by the contract. This alleged a plausible breach. The board denied the government’s motion to dismiss the Chenar.

In its motion for summary judgment on the Maholic contract, the government alleged that the claim was barred by the CDA’s statute of limitations. Under the CDA, a contractor must submit a certified claim within six years of claim accrual. The government argued that the claim on the Maholic contract accrued in November 2012 when the government returned the equipment five months late. But Kamaludin did not actually submit a certified claim until March 2013, which was more than six years later.[1]

The board agreed that the claim on the Maholic contract accrued in November 2012. The alleged injury to Kamaludin occurred when the government completed its forced extension of the lease and returned the equipment to Kamaludin. At that point, the government’s liability was fixed, and Kamaludin could bring a claim.

The question was whether Kamaludin had properly submitted a certified claim with its March 2013 claim letter. The CDA requires that to be certified, a claim must state that (1) it is made in good faith, (2) the supporting data is accurate, (3) the amount requested accurately reflects the government’s liability, and (4) that the certifier is authorized to certify the claim on behalf of the contractor.

Kamaludin argued in various ways that its letter of claim implicitly met these requirements. For instance, it contended that that it satisfied the good faith element by stating why it was submitting the claim. Kamaludin contended that it met the accurate data requirement because it explained where its figures came from. Additionally, the company alleged that the requirement for the signer to state that they were authorized to certify was satisfied because the letter was signed by Kamaludin’s president, who naturally has authority to certify.

The board rejected these arguments as an “implicit certification theory” that was contrary to the CDA, which requires explicit statement of certification. Indeed, the board reasoned, to accept Kamaludin’s argument would make the certification requirement meaningless. Almost every claim could be read as in some way being implicitly certified.

Kamaludin argued that even if its claim was not implicitly certified, it was merely defective. The FAR defines a defective claim as a claim which alters or deviates from the statutory certification language. When a claim is defective , the board still possesses jurisdiction to consider it, but it must order the defect corrected.

The board noted that legal precedent ha]s not definitively defined the bounds of what constitutes a defective claim. Nevertheless, the board opined, there needs to be something purporting to be certification to reach the threshold of being a defective certification. In this case, there was simply no certification that Kamaludin could point to as defective. If a contractor could assert that a defective certification could be implied from the claim, there would be no such thing as a claim lacking certification.

Kamaludin argued that the government should be estopped from requiring compliance with the certification requirement because the contracting officer had failed to inform the company of the certification error. But the board reasoned that estoppel requires affirmative misconduct. There was nothing in the record to indicate that the government had acted improperly.

Kamaludin argued that the statute of limitations should be tolled because the government “gulled” Kamaludin into believing that its claim had been properly submitted. The doctrine of equitable tolling, however, only applies when there has been some extraordinary circumstance that stood in the way to prevent timely submission of claim. Three was no extraordinary circumstances here. In fact, the board noted that the circumstances were relatively prosaic.

Kamaludin contended that it should be granted additional discovery related to the accrual of its claim or equitable tolling. The board, however, found that additional discovery would not alter the material facts of the case.

Kamaludin is represented by Bryant S. Banes and Sean D. Forbes of Neel, Hooper & Banes, P.C. The government is represented by Jeffrey P. Hildebrant, Christopher M. Judge-Hilborn, and Kyle E. Gilbertson of the Air Force.

[1] Note that the government did not allege that the Chenar claim was barred by the statute of limitations. The CDA’s certification requirements only apply to claims over $100,000. The Chenar claim sought $55,000 and thus did not require CDA certification. Accordingly, the letter of claim Kamaludin submitted for the Chenar contract in 2013 was sufficient.

ASBCA - Kamaludin Slyman