HDR farblog

Signature required under Contract Disputes Act

The old expression is “For want of a nail, the kingdom was lost.” For want of a signature, this claim was lost.

Well, not completely lost, but at least significantly delayed.

For want of a nail the shoe was lost,
for want of a shoe the horse was lost,
for want of a horse the knight was lost,
for want of a knight the battle was lost.
So it was a kingdom was lost—all for want of a nail.
 
  — JLA: The Nail, Alan Davis, published by DC Comics in 1998

The Armed Services Board of Contract Appeals (ASBCA) recently issued a decision that demonstrates the importance of signing a claim submitted under the Contract Disputes Act (CDA).

Background

In 2011, the U.S. Army Corps of Engineers awarded a contract for constructing a dining facility in Kyrgyzstan, but suspended the work in 2014. The contractor then engaged in a series of email messages with the contracting officer (CO) in an effort to get paid for the work it had completed.

On July 27, 2016, the contractor submitted a claim for $2,079,137 with the required certification language and with the name of the contractor’s representative typed at the end. On September 23, 2016, the CO acknowledged receiving the claim and advised that he would make a final decision about the claim by November 20, 2016. On November 4, 2016, the CO terminated the contract for the convenience of the government and invited the contractor to submit additional information for a settlement proposal.

On December 5, 2016, the contractor filed a notice of appeal with the ASBCA, asserting that the CO had not rendered his decision by November 20 as he had stated.

Motion to dismiss the appeal

The government filed a motion to dismiss, asserting the ASBCA lacked jurisdiction. The government maintained the July 27 email message did not state a valid claim under the CDA because the claim had no signature. The board agreed, pointing out that a valid CDA claim must have a certification that states—

  1. The claim is made in good faith.
  2. The supporting data is accurate and complete to the best of the contractor’s knowledge.
  3. The amount requested accurately reflects the amount the contractor believes the government owes.
  4. The person signing the claim is authorized to certify the claim on behalf of the contractor.

Furthermore, the Federal Acquisition Regulation (FAR) requires the certification be executed by a person authorized by the contractor. FAR § 33.207(e). The ASBCA has previously ruled that execution requires a signature.

FAR § 2.101 indicates that a signature means a discrete, verifiable symbol of an individual which indicates an intent to authenticate a document. A signature does not have to be handwritten, but may be an electronic or digital signature. The typed named of the contractor’s representative did not constitute an electronic or digital signature.

Good news and bad news

The ASBCA dismissed the appeal “without prejudice.” That’s the good news for the contractor, who should be able to file another claim and get paid—so long as it’s submitted with a signature. The bad news is that the payment will come after even more delay than the contractor has already experienced.

For more information, see Appeal of NileCo General Contracting, LLC, ASBCA No. 60912, issued on September 22, 2017.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2018

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Sunday, 21 January 2018

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