ON DEFENDANT'S MOTION TO DISMISS
This is an action under the Contract Disputes Act of 1978 (CDA or Act), 41 U.S.C. § 609(a)(1),
On August 16, 1979, plaintiff, a partnership, and defendant entered into DOE Contract No. DE-AC01-79ET11268, a technical support services contract relating to DOE programs in mining and preparation of solid fuels. The disputes clause of the contract contained the statement that the contract was subject to the CDA, and any claim over $50,000 had to be certified by the contractor upon submission to the contracting officer. By a letter dated December 11, 1980, plaintiff, through its attorneys, requested an upward modification in the fixed-fee provisions of the contract, citing increased costs allegedly caused by greater demands on plaintiff than originally envisioned. On April 7, 1981, the contracting officer issued a final decision denying, on the merits,
In its motion to dismiss, defendant presents two grounds in support of its motion: (1) plaintiff has failed to certify its claims as required by the Act; and (2) plaintiff has failed to exhaust administrative remedies in regard to its first claim for relief. Since we find that plaintiff has not properly certified its claims, we dismiss the petition for that reason alone and do not reach the second defense.
The requirement that a claim be certified is contained in section 605(c)(1), which, in pertinent part, states:
In Paul E. Lehman, Inc. v. United States, 230 Ct.Cl. 11, 673 F.2d 352 (1982), we held that a claim over $50,000 is not a valid claim and cannot be entertained by this court unless it has been certified. See also Troup Bros. v. United States, Ct.Cl. No. 622-80C (order entered June 8, 1982). Furthermore, the fact that the contracting officer considered the claim on the merits does not vitiate this requirement, as he "had no authority to waive a requirement that Congress imposed." Lehman, 230 Ct.Cl. at ___, 673 F.2d at 356. We have also held that a contractor cannot retroactively meet this requirement — for the purpose of direct judicial review — by certifying the claim after the final decision of the contracting officer. W. H. Moseley Co. v. United States, 230 Ct.Cl. 405, 677 F.2d 850 (1982), petition for cert. filed, 50 U.S.L.W. 3998.20 (U.S. June 21, 1982) (No. 81-2323). See also Troup Bros.
Plaintiff presents three arguments in support of its position that we should deny defendant's motion to dismiss because of failure to certify the claim: (1) lack of certification is not the proper basis for a dispositive motion; (2) certification need not be in writing, and additional facts are needed to determine whether oral certification was sufficient; and (3) certain written submissions provided by plaintiff satisfied the certification requirement.
As to plaintiff's first argument, lack of certification is indeed the proper basis for a dispositive motion, as evidenced by our decisions in Lehman, Moseley and Tri-Central, Inc. v. United States, Ct.Cl. No. 275-81C (order entered March 23, 1982). Rule 38(b), cited by plaintiff, states that every defense shall be asserted in a responsive pleading, except (among others) lack of subject matter jurisdiction, which may be raised by motion. In Moseley we stated "certification of a claim * * * is a jurisdictional prerequisite to a direct challenge in this court of a contracting officer's decision * * *." 230 Ct.Cl. at ___, 677 F.2d at 851.
Plaintiff's assertion that the certification required by the Act need not be in writing is clearly without merit. Section 605(a) states that all claims "shall be in writing," and it clearly follows that the requirement in section 605(c)(1) that the contractor certify the claim must also be in writing.
Plaintiff argues that although the above clause "appears" to require written certification, a close reading indicates that it only states what information must be certified, not how certification is to take place. This argument is clearly specious.
Finally, plaintiff argues that certain statements contained in its reproposal (suggesting modification of the contract) satisfied the certification requirement. Specifically, plaintiff asserts that the printed statements, in the "Contract Pricing Proposal" form, that the proposal "reflects our best estimates as of this date" and that the cost summary conforms with the principles set forth in agency regulations, constitutes certification of the claim. The requirement that the claim be made in good faith, plaintiff asserts, can be satisfied by the introduction of depositions testifying to representations to that effect made by plaintiff's officers.
It is clear from a reading of the statute and prior decisions of this court that we have no jurisdiction, under the CDA, to entertain an uncertified claim for over $50,000. What is perhaps not clear from our prior decisions is the consequences of a contractor's failure to certify the claim. In our recent decisions in Lehman
Both Lehman and Moseley involved a situation where the contract in question was entered into before the effective date of the Act (March 1, 1979), and the contractor filed its uncertified claim after the effective date.
In the present case, however, all relevant events have occurred after the effective date of the Act. As a consequence, the CDA would control all avenues of appeal available to the plaintiff. Where, as here, the CDA alone governs a contractor's claim for compensation, the option of going before the board on an uncertified claim is simply not available.
The importance of certification to the statutory scheme of the CDA is clear, and has been enunciated by the court in Lehman and Moseley.
In sum, any proceedings on an uncertified claim—under the CDA —are of no legal significance. In such a case, as in this case, the review process simply has not begun. The proper course of action—for a contractor whose case is dismissed for lack of jurisdiction—is the following: (1) properly certify the claim; (2) resubmit the claim to the contracting officer; and (3) if there is then an adverse contracting officer's decision, appeal either to the board (section 606) or directly to this court (section 609).
Upon consideration of the parties' submissions, without oral argument, we conclude that plaintiff has failed to certify its claims as required by statute. Since we lack jurisdiction to entertain the claims before us, for the reasons stated, defendant's motion is granted but the petition is dismissed without prejudice.
Another (potential) obstacle to going directly to the board after dismissal by this court is the period of limitations for filing an appeal of a contracting officer's decision. Under pre-Act procedures, a contractor (generally) has 30 days in which to appeal an adverse contracting officer's decision to the board. In most instances, then, a board could dismiss such an appeal for lack of timeliness. Whether or not the board decides to waive this requirement would be a matter within the board's discretion, absent abuse of that discretion. Linair, Inc. v. United States, 219 Ct.Cl. 654 (1979); Tapper v. United States, 206 Ct.Cl. 446, 514 F.2d 1003 (1975).