Preparing and submitting contract claims is a time-consuming and expensive endeavor. The last thing a contractor wants is for all that time and expense to be for naught. The recent Armed Services Board of Contract Appeals (ASBCA) decision in the case of NileCo General Contracting LLC, ASBCA 60912, reiterates the vital importance of a contractor’s dotting its “i’s” and crossing its “t’s”–and complying with applicable requirements no matter what approach might have been agreed to by the Government.
In NileCo, the ASBCA dismissed the contractor’s claim, without prejudice, because the contractor failed to “sign” the certification. The Government had issued a suspension of work to the contractor while performance of a $4.5 million construction contract was underway. After engaging in “negotiations” via correspondence with the Government over the next year or so, the contractor sent the contracting officer an email seeking to recover approximately $2 million.
The contractor’s email stated: “Please find attached our claim for withheld payments plus costs incurred and interest . . . please review the claim and let us know when we will get paid.” The email also contained the following certification language:
I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.
The email concluded with a typewritten name in the signature block, but nothing else. The CO initially responded to the email acknowledging receipt and advised that he would be issuing a final decision by November 20, 2016. When no final decision was issued, the contractor sent the ASBCA an email notice of appeal indicating it was a deemed denial based on the CO’s failure to render a decision. The Government then moved to dismiss the appeal arguing a lack of jurisdiction.
The Government asserted the claim was invalid based on the contractor’s failure “sign” the certification, which it argued was an incurable defect. The contractor responded that the parties’ course of dealing established that a typewritten signature block was binding upon the parties and should suffice for purposes of the certification. The Board noted that FAR 2.101 defines “signature or signed” as “the discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of the individual, indicates a present intent to authenticate the writing.” The Board further noted that “a signature need not be handwritten only, but can include the electronic symbols associated with electronic or digital signatures.”
In granting the motion to dismiss, the Board ultimately found that even if the parties had agreed to acknowledge the typewritten signature block as a signature, that approach does not satisfy the FAR or the case law and, thus, is still inadequate. It further found that the “lack of a signature is not a defect that is capable of being corrected”. Teknocraft, 08-1 BCA ¶ 33,846 at 167,505.
The takeaway here? Don’t let something as simple as the inclusion of “/s/” on a claim end up wasting your time and money. There is no doubt that the contractor here thought he had fully complied with the certification requirements, but the signature requirement is not one that can be avoided or forgotten, much less negotiated away. Follow the established requirement and “sign” the dotted line!
© 2017 Jackson Kelly PLLC