Claim Certifiction in an Unsigned Attachment: "A Close Call"

The Armed Services Board of Contract Appeals (“ASBCA”) recently considered an appeal involving claim certification that was made in an unsigned attachment to the claim.  KiewitPhelps, ASBCA No. 62980, March 24, 2025.  Although the Board ultimately denied the government’s motion to dismiss the claim for failure to certify, it ultimately deemed the issue a “close call,” found the certification to be acceptable (as explained below) but requiring its defects to be corrected.

KiewitPhelps (“KP”) was awarded a contract for construction of a new facility for the U.S. Strategic Command. In July 2020, KP submitted a delay and disruption claim in a document called a “Serial Letter” for $13.7 million.  KP’s project director signed the claim letter above his typewritten name, but the letter did not include any certification language.  KP’s serial letter referenced and attached supporting documents, include a narrative titled “Request for Contracting Officer’s (“CO”) Final Decision for Delay and Disruption.  The letter included a 528 page narrative attachment with supporting data. The letter also included two proposed change orders.

 Based on the contract, the CO requested cost or pricing data, and the Defense Contract Audit Agency (“DCAA”) was an authorized representative to review KP’s records for accuracy, completeness and currency of the data.  Soon thereafter, the DCAA wrote a letter to KP stating he did not include see a certification as required by FAR 52.233-1, and requesting that KP provide tat certification.  KP provided a claim certification to DCAA 8 days later, but never sent it to the CO, although the CO was aware that DCAA, acting as her representative, had a copy of the claim certification.

The Government moved to dismiss the claim because of a “complete lack of [signed] certification. KP pointed to two proposed change orders that were attached to the claim submission, and corresponding to the claim.

The Board noted that if there was no certification of a claim over $100,000, there is no certification until certified as required by the Contract Disputes Act (“CDA”).  The CDA, however, notes that where there is a defective certification, the CO must notify the contractor of any defect—and a defect does not deprive a court or a board of jurisdiction  The Court or agency board shall require correction of a defective certification prior to entry of final judgment.

A failure to certify the claim at all cannot be corrected.  The Board said that there was a defective certification here, and a defective certification can be corrected. There was a certification provided by the claim, however, it was the Defense FAR Supplement (“DFARS”) certification (similar to, but not identical to the FAR 52.233-1/CDA certification).  The signature on the two change orders attached was executed by an authorized individual, referencing the proposed change orders and these two change orders included that certification.  The question is whether a signature by an authorized official on a claim letter where the actual certification is part of an attachment is sufficient to meet the CDA’s requirement or a defective certification that can be corrected.

The Board noted that this issue was a “close call” but there was a certification provided with the claim.  It was defective.  The documents were sufficient to allow the CO to proceed and request that KP correct any defects, and KP did so.

Takeaway.  If your claim is more than $100,000, certify it using the exact language in the CDA and FAR 52.233-1, not the DFARS language.  And further, do not include that certification in an attachment.  Place the certification in the claim letter, just below the signature, and properly complete the certification—there should be two signatures (perhaps by the same authorized person), on the claim letter, that includes the certification.  Do not ever create a “close call” on certification.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.