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Don Mansfield

Definition of "Claim"

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Don,

One practical implication is that a Contracting Officer may be sitting on a "claim" and not know it. For example, a contractor may submit a request for price adjustment that is certified. The Contracting Officer may take a quick look and come to the conclusion that they probably agree. Since it's for future work, he/she assign a low priority to the analysis and processing and it sits.

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joel,

I don't know the answer to your question. You may be correct. I just wanted to see if others read the FAR definition of "claim" the way I was reading it. I think that an uncertified request for a price adjustment over $100,000 that does not seek payment is a "claim" under the FAR definition. There may or may not be any practical implications to this--I haven't thought that through yet.

Don, please see the Appeal of Sygnetics, Inc. under Contract No. W74V8H-04-D-0066, ASBCA No. 56806, dated: 12 October 2010

See it at: http://docs.law.gwu.edu/asbca/decision/pdf2010/56806.pdf

(From the WIFCON Forum Terms of Use: "RESPONDING TO POSTS: The goal of this forum is to enhance the contracting community by improving the competence of its individual users. To do that best, please post citations to laws, regulations, and decisions in your posts.")

The Decision discusses the definition of a claim under FAR 2.101 and the requirement for a signed certification of any claim over $100,000. In the instant case, the company's secretary erroneously filed the original request for equitable adjustment (including request for payment) that had a stamped signature on it and e-mailed unsigned copies to the Government. The KO rescinded her COD after discovering that there was no signed version of the REA.

The decision says, in part: "...We conclude that Sygnetics did not submit a signed CDA certification to the CO.

"The absence of a signature on a CDA certification renders it ineffective for any purpose. Teknocraft Inc., ASBCA No. 55438, 08-1 BCA ? 33,846 at 167,504-05; Hawaii CyberSpace, ASBCA No. 54065, 04-1 BCA ? 32,455 at 160,535; AT&T Communications v. G.S.A., GSBCA No. 14932, 99-2 BCA ? 30,415 at 150,363; R.W. Electronics Corp., ASBCA Nos. 46592, 46662, 95-1 BCA ? 27,327 at 136,211; Land Movers, Inc. & O.S. Johnson, Dirt Contractor (JV), ENG BCA No. 5656, 92-1 BCA ? 24,473 at 122,102. Thus, ASBCA No. 56806 must be dismissed for lack of jurisdiction."

The Government conceded that various other claims under $100k were valid for jurisdiction by the ASBCA. This Decision related to the one that was over $100k.

I will look later for specific examples of claims for future work. Going sailing this afternoon. The crew is restless.

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This is from the cited decision:

2. On 16 May 2008, Sygnetics submitted an uncertified request for payment of five previously disputed invoices relating to TO No. 0006 to LTC Gregory C. Franks, Contracting Officer, CCE, Department of the Army, Contracting Center for Excellence, Army Contracting Agency, 5200 Army Pentagon, Washington, DC 20310-5200 (app. supp. R4, tab BB).

3. On 12 June 2008, LTC Franks, the former CO, met with Mr. Tony Tarkowski, Sygnetics? president and chief executive officer (CEO), to discuss Sygnetics? request for an equitable adjustment (Tarkowski decl. ? 5). According to LTC Franks? declaration, he informed Mr. Tarkowski that the request had to be certified and showed him FAR 33.207 (Franks decl. ? 2(c.))...

Section 605(a) of the CDA requires that all claims be in writing and submitted to the CO for a decision...

The absence of a signature on a CDA certification renders it ineffective for any purpose.

The contractor's claim was for payment of disputed and unpaid invoices. Either Judge Tunks of the ASBCA does not know the difference between a request for equitable adjustment and a request for payment of disputed invoices, or the contractor did not know and used the term inappropriately in his declaration. Despite the sloppy use of terminology, the judge properly decided that the absence of a signature on a claim certification made the certification ineffective. I see nothing in the decision that we have not already discussed, and I don't see what bearing the decision has on Don's question, which was about requests for equitable adjustment that are not requests for payment of money.

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Don, you said in post #25 that you you think "an uncertified request for a price adjustment over $100,000 that does not seek payment is a 'claim' under the FAR definition".

The Contract Disputes Act and FAR 33.207 (a) both state that it must be certified in order to be a claim.

Paragraph ( c) of the Contract Disputes Act requires that all claims exceeding $100,000 must be certified. See: http://federalconstruction.phslegal.com/Co...isputes_Act.pdf

"( c) Amount of claim; certification; notification; time of issuance; presumption; authorization of certifier (1)... For claims of more than $100,000, the contractor shall certify that the claim is made in good faith...." (Emphasis added)

This is stated in FAR 33.207 (a) as follows:

"33.207 -- Contractor Certification.

"(a) Contractors shall provide the certification specified in paragraph ( c) of this section when submitting any claim exceeding $100,000." (Emphasis added)

In Post 27, it was earlier established that lack of a certification "renders the claim ineffective for any purpose".

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