FRIEDMAN, Circuit Judge.
This is an appeal from a decision of the Interior Board of Contract Appeals (Board) dismissing appeals in two consolidated cases from decisions of the contracting officer denying the contractor's claims for additional compensation. The ground of dismissal was that the claims were not properly certified under the Contract Disputes Act of 1978 (Act), 41 U.S.C. § 605(c)(1) (1982), because the certifications of the claims were not signed by a person authorized to certify claims under the Act. Appeal of Ball, Ball & Brosamer, Inc., 88-3 BCA (CCH) ¶ 20,844 (1988). We affirm.
The Bureau of Reclamation awarded one contract to a joint venture composed of Ball, Ball & Brosamer, Inc., and Ball & Brosamer (JV) (joint venture), and the other to a corporation, Ball, Ball & Brosamer, Inc. (corporation). Both contracts were signed by Robert G. Brosamer, as president of Ball, Ball & Brosamer, Inc., for the corporation, and as co-joint venturer for the joint venture.
Disputes arose over both contracts, and the contractor submitted to the contracting officer a claim under each contract. Since each claim was for more than $50,000, the Act required that it be certified. Each claim was certified by Don Meek.
The contracting officer denied each claim, and the contractor appealed both decisions to the Board. The government moved to dismiss the appeals, on the ground that under the Act Mr. Meek was not authorized to certify the claims. In response, Mr. Meek filed an affidavit stating:
Mr. Meek's affidavit further stated: "I have the authority to sign claims on behalf of BBB."
The corporation's president, Robert G. Brosamer, also filed an affidavit, which stated:
The Board considered these affidavits and concluded that "while the signer [Mr. Meek] may have been a senior level official, ... there is no indication that he had the general corporate authority that the FAR [Federal Acquisition Regulation] clause contemplates." The Board ruled:
As noted, two separate appeals were filed to the Board, by the joint venture and by the corporation. The Board consolidated these appeals for purposes of the government's motion to dismiss. The notice of appeal to this court and the appellant's brief were filed only by the joint venture. In its brief the government argued that the claim of the corporation is not properly before this court because only the joint venture and not the corporation filed the notice of appeal. In response, the joint venture moved, pursuant to rule 43(b) of the Federal Rules of Appellate Procedure, to substitute the corporation as the appellant because the corporation is the real party in interest. The government opposes substitution.
Since we conclude that the Board correctly held that Mr. Meek was not entitled to certify the claims — a conclusion that results in affirmance of the Board's decision dismissing the appeals — we find it unnecessary to determine whether to allow the substitution. There is no question that the
Both the joint venture and the corporation have resubmitted their claims to the contracting officer, accompanied by certifications that the government apparently does not challenge. The contracting officer has denied at least one and perhaps both of the recertified claims. The Board will be able to decide the merits of both claims in any appeals the contractor may file from the contracting officer's new decisions, without regard to who is the proper appellant in this case.
Section 6(c)(1) of the Act provides in pertinent part:
41 U.S.C. § 605(c)(1) (1982).
Unless the contractor has submitted a properly certified claim to the contracting officer, there is no valid claim, the denial of which is an appealable decision of the contracting officer. Milmark Servs., Inc. v. United States, 231 Ct.Cl. 954, 956 (1982); W.H. Moseley Co. v. United States, 677 F.2d 850 (Ct.Cl.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 77 (1982); Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 354 (Ct.Cl.1982).
A Federal Acquisitions Regulation (FAR) 33.207, 48 C.F.R. § 33.207 (1988), promulgated by the Administrator of Federal Procurement Policy, provides in part:
The parties agree that this regulation, the operative language of which also appears in the disputes clause of both contracts, applies to the present dispute.
Mr. Meek does not satisfy either of the requirements of subsection (c)(2). Even assuming that the chief cost engineer was a "senior company official" within the meaning of that provision, he was not "in charge at the contractor's plant or location involved" (subsection (c)(2)(i)), and he did not have "overall responsibility for the conduct of the contractor's affairs" (subsection (c)(2)(ii)). The fact that Mr. Meek may have had "authority to sign and certify claims on behalf of the corporation," as the corporation's president stated he had, does not establish that Mr. Meek comes within either of the two categories of persons the regulation authorizes to execute certifications of claims.
The appellant urges us to construe the regulation more broadly as covering a company official who is authorized to submit and certify claims on behalf of the company. The appellant relies on the following statement by Admiral Rickover made during the hearings on the Act, which apparently was the source of the certification requirement:
Contract Disputes Act of 1978: Joint Hearings on S. 2292, S. 2787 & S. 3178 Before the Subcomm. on Federal Spending Practices and Open Government of
We apply the regulation as written, and we reject the appellant's proposal to expand the regulation beyond its terms. The regulation is unambiguous, and the appellant does not assert that it was unable to determine who among its officials was authorized to certify. Indeed, after the government challenged before the Board Mr. Meek's authority to certify, the appellant apparently had no difficulty in executing a proper certification.
The Act merely provides that "the contractor shall certify." The regulation constitutes a reasonable explication of how the "contractor" shall certify, i.e., it identifies the individuals within the contractor's organization who properly may act for the contractor in certifying. Cf. INS v. Jong Ha Wang, 450 U.S. 139, 144-45, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981). In terms of Admiral Rickover's suggestion, the regulation specifies the "senior responsible contractor official[s]" who are authorized to sign the certification.
The certification requirement furthers an important objective of Congress by "trigger[ing] a contractor's potential liability for a fraudulent claim under section 604 of the Act," Skelly & Loy v. United States, 231 Ct.Cl. 370, 685 F.2d 414, 418 n. 11 (1982), and thus "`discourag[ing] the submission of unwarranted contractor claims.'" Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 354 (Ct.Cl.1982) (quoting S.Rep. No. 1118, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin.News 5235, 5239). "Congress wanted to hold the contractor personally liable, and it considered the best way to do this would be to require contractors personally to certify their claims." Donald M. Drake Co. v. United States, 12 Cl.Ct. 518, 519 (1987). The regulation properly implements this objective by specifying the persons in the contractor's organization who may certify a claim.
The decision of the Interior Board of Contract Appeals dismissing the appeals in these cases for lack of jurisdiction is