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CDA Certification - multiple claims


Supra

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If a contractor has multiple claims on a project, some below $100k and some above $100k, does FAR 33.207 require/mandate the contractor submit a CDA certification for each claim over $100k separately?

Or, can the contractor aggregate all his claims under one single certification?

Any cites or references would appreciated. I’m at a loss. Thanks in advance.

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Guest Vern Edwards

See Darst and Irwin, Fundamentals of Government Contracting (Federal Publications, Inc., 2007), Ch. 10G, "Certification of CDA Claims":

One issue that sometimes arises is whether the claimed amount exceeds the dollar threshold for certification. In general, the contractor must consider the aggregate effect increases and decreases in cost to determine whether the claim exceeds the $100,000 threshold for certification. FAR 33.207(d). Claims the based on common or a related set of operative facts constitute one claim. [sic.] Placeway Constr. Corp., 920 F.2d 903 (Fed. Cir. 1990). Thus, a contractor may not split the single claim into multiple claims in order to avoid the certification requirements. Walsky Constr. Co. v. United States, 3 Ct. Cl. 615 (1983); Columbia Constr. Co., ASBCA No. 48536, 96-1 BCA ¶27,970. At the same time, separate claims (i.e., those not based on common or related operative facts) totaling less than $100,000 each do not require certification, even if their combined total exceeds the $100,000 threshold. Phillips Constr. Co., ASBCA No.27055, 83-2 BCA ¶16,618.

Nothing prevents a contractor from consolidating and certifying unrelated claims.

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Thanks, Vern.

It seems every time this issue has come up its always been when the contractor fails to provide the CDA cert and breaks up his claims into separate, multiple claims - all under the $100k threshold, thus not requiring the CDA cert - to avoid CDA requirements for cert. The cts and boards look at the underlying facts, and if they are all the same for each claim, the court aggregates them and then determines a CDA cert is required and bounces jurisdiction if none was filed.

I've not seen it argued the other way where the KO requires individual certs for each of the underlying claims. It makes sense to me reading the FARs that as long as the contractor certifies all the costs, it doesnt matter whether he issues a single or multiple certs (it becomes form over substance at that point).

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