# The Haskell Company

> Armed Services Board of Contract Appeals · May 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11337573

## Case

- **Court:** Armed Services Board of Contract Appeals
- **Decided:** May 5, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Arnett
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
The Haskell Company ) ASBCA Nos. 64380, 64381
)
Under Contract No. N40085-17-C-8327 )

APPEARANCES FOR THE APPELLANT: Brendan R. Geraghty, Esq.
Jay W. Matthews, Esq.
Demetrius Pyburn, Esq.
Haynsworth Sinkler Boyd, P.A.
Greenville, SC

APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq.
Navy Chief Trial Attorney
David M. Ruddy, Esq.
Devin A. Wolak, Esq.
Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE ARNETT ON
THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION

This matter comes before the Board on two appeals arising from a contracting
officer’s final decision denying a “pass-through sponsored claim” filed by the
subcontractor, ENFRA MCC LLC (ENFRA), in the name of the prime contractor,
The Haskell Company (Haskell). The Department of the Navy (the Navy or
government) has moved to dismiss the appeals for lack of jurisdiction. The Navy
asserts that the “pass-through sponsored claim” is invalid because ENFRA has
no privity of contract with the Navy and the claim lacks certification by the prime
contractor, as required by the Contract Disputes Act (CDA). ENFRA contends that
the claim was properly certified and sponsored by the prime contractor.

For the reasons stated below, we deny the Navy’s motion to dismiss for lack of
jurisdiction.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

Background:

1. On June 29, 2017, the Navy awarded Contract No. N40085-17-C8327 (the
Contract) to Haskell (R4, tab 26 at 3323-24).
2. On or about September 8, 2017, Haskell awarded a subcontract to ENFRA
f/k/a Bernhard MCC, LLC 1 for the design and construction of mechanical systems for
the Contract (R4, tab 77 at 3541).

Claim Correspondence and the Contracting Officer’s Final Decision:

3. As early as February 2024, email correspondence between counsel for
ENFRA and counsel for Haskell indicate that they were discussing ENFRA’s intent to
submit a pass-through claim and whether Haskell would “support a pass-through
claim” (app. resp. ex. 1 at 40-41). For approximately one year, their communication
continued monthly, until ENFRA confirmed to Haskell that it had sent a claim letter to
the government on February 3, 2025 (id. at 18).

4. In a document dated February 3, 2025, ENFRA submitted a “pass-through
sponsored claim” to the Navy relating to the Contract between Haskell and the Navy
(R4, tab 77 at 3532).

5. The claim included Enclosure 1, labelled “Certification – Haskell”, which
was signed by Mr. Roger McDonell, Haskell’s VP of Construction. It stated:

This Claim is being filed by our subcontractor and
inasmuch as they do not have contract privity with you, we
are acting as a conduit on their behalf in this matter. We
do not have access to their books and records, and
therefore, cannot make any statement with respect to the
amount of their Claim. However, we have no reason to
believe that their cost figures and delay estimates are
incorrect.

(Id. at 3538) We find that Haskell’s certification deviates from the language
prescribed by the CDA, 41 U.S.C. § 7103(b)(1).

6. The claim also included Enclosure 2 which was labelled as a “Certification”
and signed by Mr. Richard D. Barnes, ENFRA’s VP for Operations. It stated:

I certify that the claim is made in good faith; that the
supporting data are accurate and complete to the best of
my knowledge and belief; that the amount requested
accurately reflects the contract adjustment for which the

1
It is undisputed that ENFRA was previously known as Bernhard MCC, LCC (R4,
tab 84 at 4193; gov’t mot. at 3 n.2). For simplicity, it is referred to throughout
this document as ENFRA.

2
contractor believes the Government is liable; and that I am
duly authorized to certify the claim on behalf of the
contractor.

(Id. at 3539) We find that ENFRA’s certification mirrors the language prescribed by
the CDA, 41 U.S.C. § 7103(b)(1) but is signed by a subcontractor.

7. On March 6, 2025, the Contracting Officer (CO) issued a letter to Haskell
indicating that the Navy had received ENFRA’s February 3, 2025 correspondence
purporting to be a claim under the Contract Disputes Act (R4, tab 78 at 3855_1-2).
The CO concluded that ENFRA had improperly attempted to assert a claim directly to
the government (id.). She stated that the government would only act on a claim
asserted by Haskell and declined to issue a final decision (id.).

8. On April 4, 2025, ENFRA’s counsel responded, contending that a
subcontractor may submit a claim if the claim indicates that it is sponsored by the
prime contractor, as Haskell demonstrated through its certification (R4, tab 80
at 3858).

9. On May 1, 2025, the Navy CO reiterated her position to Haskell that, if the
prime contractor wished to sponsor the proposed pass-through claim, it needed to
submit the claim directly to the government (R4, tab 81).

10. On May 27, 2025, Mr. Jeff Miller, VP, General Counsel of Haskell, sent a
“draft letter seeking review of [ENFRA’s] claim submission” to ENFRA’s counsel for
his input (app. resp. ex. 1 at 17-18).

11. On June 4, 2025, Mr. Miller, VP, General Counsel of Haskell, responded
to the CO’s May 1, 2025 letter and specifically requested that the Navy “review and
consider” the claim submitted by ENFRA “as a properly submitted pass through claim
sponsored by Haskell” (R4, tab 82). Further, Haskell stated that it “agrees with
[ENFRA’s] interpretation of the CDA and relevant case law provided for your review
that their claim submission is proper, adequately sponsored by Haskell and deserving
of review and consideration” (id.). In closing, the letter stated, “If you do not wish to
review and consider [ENFRA’s] claim, please deny in total and provide a Final
Decision” (id.). We find that, through its June 4, 2025 letter, Haskell sponsored
ENFRA’s claim.

12. On July 31, 2025, the Navy CO issued a Final Decision (COFD) addressed
to Haskell, which stated:

I have reviewed reference (1), The Haskell Company’s
(Haskell) pass-through claim where it alleges that

3
subcontractor . . . [ENFRA] incurred costs in the total
amount of $899,656.29 due to project delays alleged to be
attributable to the Government (“the Claim”). In
reviewing the Claim and the relevant contract documents,
your Claim is denied in its entirety.

(R4, tab 83 at 4190-92) The COFD asserted that Haskell had an obligation to account
for subcontractor costs when negotiating modifications with the government, cited
bilateral modifications executed by the parties to the contract, and denied the claim, in
its entirety, on the basis that it “did not demonstrate entitlement for additional costs”
(id. at 4191).

13. We find that the CO reviewed and rendered a decision addressed to the
prime contractor on the substance of the pass-through claim. The denial was not based
upon a lack of privity of contract or a defective certification.

The Appeals:

14. On October 15, 2025, counsel for ENFRA emailed Mr. Jeff Miller, Haskell
General Counsel, stating ENFRA’s intent to appeal the denial of its claim and
inquiring whether Haskell would “update the letter . . . confirming sponsorship of the
claim” (app. resp. ex. 1 at 16).

15. On October 27, 2025, counsel for ENFRA submitted a notice of appeal to
the Board stating ENFRA’s intent to appeal the July 31, 2025 COFD. The notice
stated, “ENFRA’s claims were submitted to the Government as a pass-through
sponsored claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-09.
Haskell provided consent and certification of the claims.” (Notice at 1) We find that
Mr. Jeff Miller and Mr. Roger McDonnell, who are both identified as Haskell VPs,
were copied on the email filing to the Board (app. resp. at 6, ex. 2).

16. On October 30, 2025, the Board docketed two appeals under the name of
the prime contractor, The Haskell Company. ASBCA No. 64380 pertains to a claim
for “Changed Work”, and ASBCA No. 64381 pertains to a claim related to
COVID-19.

17. On December 11, 2025, the Navy filed a Motion to Dismiss both appeals,
citing a lack of jurisdiction (gov’t mot. at 16).

18. On December 12, 2025, ENFRA filed a complaint which stated that it was
submitted “through the Haskell Company” and that Haskell “provided consent and
certification of the claims” (compl. ¶ 1). The complaint also alleged that Haskell

4
“separately submitted a letter to the Government further confirming sponsorship of the
claims” (id.).

19. On January 9, 2026, ENFRA filed its Response to Respondent’s Motion to
Dismiss. On the same date, Mr. Jeffrey Miller, VP, General Counsel of Haskell, filed
a letter with the Board confirming that Haskell “is aware that ENFRA . . . has filed the
subject Appeals in the name of Haskell . . . and agrees to sponsor such Appeals and the
underlying claims.” (App. resp. ex. 3 at 45)

20. On February 9, 2026, the Navy filed its Reply in Support of its Motion to
Dismiss (gov’t reply at 14).

DECISION

The Parties’ Contentions

The Navy requests dismissal of these appeals for lack of jurisdiction on two
grounds: 1) ENFRA has failed to establish privity of contract with the Navy (gov’t
mot. at 5-10) and 2) the claim is invalid because it lacks the required CDA certification
(id. at 10-15). As to the privity of contract argument, the Navy asserts that ENFRA
has not satisfied the sponsorship exception to the requirement for privity of contract
(id. at 8-10). Specifically, the Navy contends that ENFRA has not established that
Haskell is proceeding on ENFRA’s behalf or has authorized ENFRA to proceed in
Haskell’s name in this forum (id.). As to the certification issue, the Navy posits that
Haskell’s certification lacks the required elements of a CDA certification and is
tantamount to a lack of certification which is not a curable defect (id. at 10-15).

In response, ENFRA asserts that privity is not required for a properly sponsored
pass-through claim and that Haskell sponsored ENFRA’s claim (app. resp. at 3-9).
ENFRA submitted email correspondence with Haskell leading up to submission of the
claim to demonstrate Haskell’s “continued cooperation” (id. at 3-5). ENFRA contends
that Haskell was aware that ENFRA intended to appeal the claim denial, noting that
Haskell was copied on the email when the notice of appeal was filed (id. at 6, ex. 2).
ENFRA argues that Haskell’s sponsorship need not be reaffirmed and that the identity
of the party who filed the notice of appeal does not “negate jurisdiction where the
appeal arises from a properly sponsored claim” (id. at 7-8). As to the certification
issue, ENFRA contends that Haskell’s certification substantially complied with the
CDA and was intentionally drafted to mirror certification language upheld in prior
precedent (id. at 9-11). Finally, ENFRA argues that, at the very least, the claim
certification was defective and amenable to correction (id. at 11-12).

In its Reply, the Navy argues that prime contractor sponsorship must be evident
both at the presentation of the claim to the government and at the notice of appeal

5
(gov’t reply at 4-6). The Navy asserts that there is no evidence of Haskell’s
sponsorship at the time the Notice of Appeal was filed which it alleges is the critical
juncture when the Board’s jurisdiction must be determined (id. at 6-7). The Navy
contends that a lack of sponsorship at the Notice of Appeal violates 41 U.S.C. §
7104(a) because ENFRA is not a “contractor” authorized to appeal under the statute
(id. at 7). Although ENFRA has produced contemporaneous claim-related email
correspondence with Haskell, the Navy contends that it is “irrelevant to the
sponsorship analysis” because the government was not copied on the communication
(id. at 4). Finally, the Navy argues that Haskell’s January 9, 2026 letter is belated
sponsorship since it was submitted after the 90-day appeal period had elapsed and that
ENFRA cannot retroactively establish jurisdiction (id. at 7-8).

Standard of Review

Once jurisdiction has been challenged, appellant bears the burden of proving
the Board’s jurisdiction by a preponderance of the evidence. Reynolds v. Army and
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). We accept uncontroverted
factual allegations as true for purposes of deciding motions to dismiss for lack of
jurisdiction, and “other facts underlying the jurisdiction allegations are subject to
fact-finding” based upon our review of the record. L-3 Commc’ns Integrated Sys.,
L.P., ASBCA Nos. 60713, 60716, 17-1 BCA ¶ 36,865 at 179,625. We may “look
beyond the pleadings and ‘inquire into jurisdictional facts’ that are disputed in order
to determine whether or not we have jurisdiction.” Env’t Safety Consultants, Inc.,
ASBCA No. 54615, 07-1 BCA ¶ 33,483 at 165,979 (quoting Recovich v. United States,
933 F.2d 991, 993 (Fed. Cir. 1991)).

The Privity of Contract Issue

This Board’s jurisdiction over an appeal of a CDA claim arises from 41 U.S.C.
§ 7105(e)(1)(A), which confers “jurisdiction to decide any appeal from a decision of a
contracting officer . . . relative to a contract made by that department or agency.” A
CO’s decision which serves as the basis for an appeal must be issued in response to a
claim filed by a “contractor” relating to a contract with the federal government. 41
U.S.C. § 7103(a)(1)-(2). Within 90 days of the receipt of a CO’s decision, a
“contractor” may appeal the decision to an agency board. 41 U.S.C. § 7104(a). The
term “contractor” is defined as “a party to a Federal Government contract other than
the Federal Government.” 41 U.S.C. § 7101(7). Thus, a “contractor” may file a claim
under the CDA and may appeal a CO’s decision to the Board.

ENFRA is not a “contractor” for purposes of the CDA.

In this case, Haskell is a “contractor”; ENFRA is not. ENFRA has no privity of
contract with the government. ENFRA acknowledges that it is a subcontractor and

6
does not dispute that it lacks privity of contract with the Navy (app. resp. at 2).
Rather, ENFRA 2 argues that sponsorship by the prime contractor is a recognized
exception to the privity requirement (id.).

We have recognized two limited exceptions to the privity requirement for
subcontractors: (1) cases where a prime contractor acts as an agent for the
government, and (2) cases where a prime contractor sponsors the subcontractor’s
appeal. Frontline Support Solutions, LLC, ASBCA No. 64022, 25-1 BCA ¶ 38,803
at 188,731; United States v. Johnson Controls, 713 F.2d 1541, 1551 (Fed. Cir. 1983);
Holmes & Narver Servs., Inc., ASBCA No. 51155, 00-2 BCA ¶ 30,972 at 152,850-51.
ENFRA has not alleged that Haskell acted as an agent for the government. Instead,
ENFRA asserts that Haskell sponsored its claim (app. resp. at 2). Thus, we focus our
analysis on the second exception.

What is required for prime sponsorship of a subcontractor claim?

In a series of cases, we have delineated what is required for a prime contractor’s
sponsorship of a subcontractor’s claim and appeal. We have consistently considered
the circumstances of the claim to determine if the appeal was made with the
authorization and sponsorship of the prime contractor. J.E. McAmis, Inc., ASBCA
No. 54455, 04-2 BCA ¶ 32,746 at 161,953; Batteast Constr. Co., ASBCA Nos. 33357,
30452, 89-3 BCA ¶ 21,933 at 110,340-41; Foster Co. of Greenville, Inc., ASBCA
Nos. 29132, 28955, 84-2 BCA ¶ 17,481 at 87,090.

In Algernon Blair Indus. Contractors, ASBCA No. 25277, 83-2 BCA ¶ 16,737
at 78,618, we concluded that a subcontractor was authorized to appeal in the name of
the prime contractor based upon the prime contractor’s “consistent cooperation”
throughout the process of pursuing the claim. We also considered a timely notice of
appeal filed by the subcontractor in the name of the prime contractor where the prime
contractor subsequently filed an untimely notice upon learning that the government
did not regard the subcontractor’s notice as “proper.” We found no reason to question
that the subcontractor “acted with the requisite authority when he signed the appeal . . .
in the name of the appellant” and determined that the prime contractor’s late notice
was further evidence of the “pattern of cooperation.”

In Foster Co. of Greenville, Inc., 84-2 BCA ¶ 17,481 at 87,090, we addressed a
subcontractor’s claim which was submitted by the prime contractor, denied by the

2
Notwithstanding their actual interests, ENFRA is not the named party in this case.
Haskell is. As a consequence of sponsorship and consistent with our precedent,
ENFRA must litigate in the name of the prime contractor. Thus, in future
filings, the appellant shall refer to itself as Haskell and will be addressed by the
Board as such.

7
government, and timely appealed by the subcontractor in its own name. Subsequently,
the prime contractor filed an untimely amended notice of appeal to ratify the notice
filed by its subcontractor. We addressed the question of “whether the Notice of
Appeal filed by the subcontractor should be deemed to have been filed by the Prime
Contractor.” Having found that “the requisite sponsorship and authorization existed”
when the subcontractor filed its notice of appeal, we held that the subcontractor’s
notice of appeal, as ratified by the prime contractor, was timely and effective and
substituted the name of the prime contractor as appellant.

In Batteast, ASBCA Nos. 33357, 30452, 89-3 BCA ¶ 21,933 at 110,339, the
notice of appeal stated that the subcontractor, by and through the prime contractor, was
appealing the COFD. It was submitted by the subcontractor to the CO, the prime
contractor, and the Board. Id. We found “abundant evidence” that the prime
contractor sponsored the claim” and “no evidence” that it “did not intend to continue
its sponsorship of the claim” following issuance of the COFD. Id. at 110,341. We
specifically considered correspondence between counsel for the prime and the
subcontractor as evidence of the prime’s continued sponsorship. We concluded that
the subcontractor could appeal in the name and under the sponsorship of the prime
contractor. Id.

“Sponsorship and authority can be inferred when the prime contractor
subsequently ratifies the filing of that appeal and ‘consistently cooperates’ in the
presentation of the claim even if the prime contractor did not specifically authorize the
subcontractor to file the appeal prior to the expiration of the appeal period.” Holmes &
Narver, 00-2 BCA ¶ 30,972 at 152,851; J.E. McAmis, Inc., 04-2 BCA ¶ 32,746 at
161,953. However, where there is no evidence of prime sponsorship until months after
the subcontractor filed a notice of appeal, a belated sponsorship agreement without
actual ratification by the prime contractor is ineffectual to establish jurisdiction. Door
Pro Sys., Inc., ASBCA No. 34114, 87-3 BCA ¶ 19,997 at 101,287.

Haskell sponsored ENFRA’s claim.

Here, the Navy challenges Haskell’s sponsorship of both ENFRA’s claim and
the subsequent appeal. As to the claim, the Navy cites “only two occasions” where
Haskell “provided input to the claim process”: 1) Haskell’s certification and 2) its
June 4, 2025 letter to the CO (gov’t mot. at 9). The Navy argues there is “no evidence
of consistent cooperation” (id. at 10). We disagree.

We have found Haskell’s June 4, 2025 letter to the CO requesting that she
“review and consider” ENFRA’s claim as a “properly submitted pass through claim
sponsored by Haskell” expressly demonstrated Haskell’s sponsorship of the claim
(SOF ¶¶ 10-11). Further, the email correspondence between ENFRA and Haskell’s
counsel demonstrates “consistent cooperation” for more than a year, culminating with

8
submission of the claim (SOF ¶¶ 3-4). We also note that the CO directed claim
correspondence and the COFD to Haskell which reflects a contemporaneous
understanding that the claim was sponsored by Haskell (SOF ¶¶ 7, 9, 12). There is
ample evidence of Haskell’s sponsorship of the claim.

There is no evidence that Haskell’s sponsorship was discontinued at the Notice
of Appeal.

The Navy contends that “nothing in the notice of appeal indicated or suggested
that Haskell co-signed, sponsored, or was otherwise involved in this appeal in any
way” (gov’t reply at 6-7). We disagree.

The Notice of Appeal stated that the claim had been submitted as a
“pass-through sponsored claim” and affirmatively represented that Haskell “provided
consent and certification” (SOF ¶ 15). We previously found that two Haskell VPs,
Mr. Miller and Mr. McDonnell, were copied on the filing of the notice of appeal (id.).
Correspondence between counsel for ENFRA and Haskell also demonstrates Haskell’s
continued sponsorship (SOF ¶¶ 3, 10).

The facts in this case are very similar to those presented in Batteast, 89-3 BCA
21,933. In both instances, the subcontractor directly filed a notice of appeal and
provided a copy to the prime contractor at the time of filing (SOF ¶ 15). Like Batteast,
we conclude here that there is abundant evidence that the prime sponsored ENFRA’s
claim and no evidence that it did not intend to continue its sponsorship following
issuance of the COFD.

Haskell’s January 9, 2026 letter is not belated sponsorship.

The Navy also argues that Haskell’s January 9, 2026 letter is belated
sponsorship comparable to the facts addressed by the Board in Door Pro Sys., Inc.,
87-1 BCA ¶ 19,997 at 101,287. However, we conclude that this case differs
significantly from the limited facts presented in Door Pro.

In Door Pro, we held that a letter filed almost five months later was insufficient
to establish sponsorship of the claim at the time notice of appeal was filed. There was
no evidence of prime sponsorship prior to submission of the letter. Id.

Here, Haskell was aware of ENFRA’s claim a year prior to its filing, provided a
certification to accompany the February 3, 2025 claim, specifically requested that the
Navy consider ENFRA’s claim as a “properly submitted pass through claim sponsored
by Haskell”, and was copied on the notice of appeal (SOF ¶¶ 3-4, 11, 15). There is
abundant evidence of Haskell’s sponsorship of the claim and appeal, unlike the facts in
Door Pro.

9
The Certification Issue

The CDA requires certification of claims which exceed $100,000. 41 U.S.C.
§§ 7101-09, 7103(b). The certification must be “executed by an individual authorized
to bind the contractor with respect to the claim” and must certify that (a) the claim is
made in good faith; (b) the supporting data are accurate and complete to the best of the
contractor’s knowledge and belief; (c) the amount requested accurately reflects the
contract adjustment for which the contractor believes the Federal Government is
liable; and (d) the certifier is authorized to certify the claim on behalf of the contractor.
Id. at 7103(b)(1). A defect in the certification does not deprive a court or an agency
board of jurisdiction over the claim if it is corrected prior to the Board’s final decision.
Id. at 7103(b)(3). A defective certification is “a certificate which alters or otherwise
deviates from the [statutory certification] language in [FAR] 33.207(c) or which is not
executed by a person authorized to bind the contractor with respect to the claim.
Failure to certify shall not be deemed to be a defective certification.” Federal
Acquisition Regulation (FAR) 33.201. “[T]here needs to be something purporting
to be a certification in order to reach the threshold of being a defective certification.”
Kamaludin Slyman CSC, ASBCA No. 62006, 21-1 BCA ¶ 37,849 at 183,794 (holding
that the contractor’s “implicit certification” derived from “cobbled-together portions of
the claim” did not constitute a defective, remediable certification).

The Claim included certifications from both the prime and subcontractor.

The Navy alleges that Haskell’s certification is so lacking that it is tantamount
to no certification (gov’t mot. at 13). The complete omission of a certification is not a
curable defect. Abdul Ahad Khadim Constr. Co., ASBCA No. 59206, 14-1 BCA
¶ 35,694 at 174,765; CDM Int’l, Inc., ASBCA No. 52123, 99-2 BCA ¶ 30,467
at 150,514. The Navy argues that we should follow our holding from Kamaludin
Slyman CSC, ASBCA No. 62006, 21-1 BCA ¶ 37,849 at 183,793, and conclude that
the claim was “not merely defectively certified, but wasn’t certified at all.” We find
the Navy’s arguments unavailing because the cases cited by the Navy involve claims
which completely lack certification.

Here, ENFRA’s claim included two certifications which were distinctly labeled
and signed: one from Haskell and one from ENFRA (SOF ¶¶ 5, 6). Thus, our prior
decisions in Abdul Ahad Khadim, CDM Int’l, and Kamaludin Slyman do not guide our
decision here.

The Court of Appeals for the Federal Circuit has set a standard for a prime
contractor’s certification of a sponsored subcontractor claim.

Appellant contends that Haskell’s certification was “intentionally drafted to
mirror the certification approved by the Federal Circuit in Transamerica Insurance

10
Corp. v. United States and that it reflects precisely the good-faith belief standard
articulated in United States v. Turner Construction Co.” (App. resp. at 2) We have
found that Haskell’s certification deviated from the language prescribed by the CDA
(SOF ¶ 5). We must determine whether the deviation renders the certification
defective, but subject to correction. The Court of Appeals for the Federal Circuit has
addressed a prime contractor’s certification of a subcontractor’s pass-through claim in
several cases and provides binding precedent for resolution of this issue.

In United States v. Turner Construction Co., 827 F.2d 1554, 1559 (Fed. Cir.
1987), the government challenged a prime contractor’s certification of a pass-through
sponsored claim, arguing that it was invalid because it was qualified by, and in conflict
with, an adverse recommendation previously submitted to the government. Id. The
Court rejected the government’s argument that the certification “must reflect the prime
contractor’s own belief” that the claim reflects the amount owed by the government
and “that to allow the prime to substitute the subcontractor’s belief for its own in
making a certification would make a sham of the certification requirement . . . and
would render meaningless the prohibition against direct appeals by subcontractors.”
Id. at 1561. The Court held that “the certification requirement requires not that the
prime contractor believe the subcontractor’s claim to be certain, but that the prime
contractor believe that there is good ground for the claim.” Id. Having found that the
prime contractor’s certification included the required statutory elements, the Court
held that it was sufficient to confer jurisdiction. Id. at 1561-62.

In Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1579-81 (Fed. Cir.
1992) , the Court considered a certification signed by a prime contractor which was
3

accompanied by a subcontractor certification. The Claims Court had found the
certification defective because it was “unduly qualified” by language in the prime’s
cover letter which stated:

This claim is being filed by our subcontractor and
inasmuch as they do not have contract privity with you, we
are acting as a conduit on their behalf in this matter. We
do not have access to their books and records and,
therefore, cannot make any statement with respect to the
amount of their claim. However, we have no reason to
believe that their cost figures and delay estimates are
incorrect.

3
The Federal Circuit’s decision in Transamerica Ins. Corp was overruled on other
grounds by its decision in Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1583
(Fed. Cir. 1995).

11
Id. at 1580. On appeal, the Federal Circuit held that the prime’s certification was
“valid and not so qualified as to make it ineffective” and concluded that the
certification “clearly complied with the chief policy underlying the CDA certification
requirement, that being the purpose of submitting the contractor to liability for fraud.”
Id. at 1581.

In Dai Global, LLC v. Administrator of USAID, 945 F.3d 1196, 1199 (Fed. Cir.
2019), the Federal Circuit addressed an appeal arising from the dismissal of multiple
subcontractor pass-through claims sponsored by the prime contractor where the prime
contractor provided a cover letter “certification” as well as certifications signed by its
subcontractor. The prime’s cover letter expressed its belief that there was a “sound
basis” for the claims and stated the following:

Given that [EI] is the real party in interest and is the only
one who can logically and realistically certify these claims,
DAI hereby submits this certification in satisfaction of the
requirements of the Contract Disputes Act. As DAI is not
the real party in interest, DAI must accept and rely on the
[EI] certification at face value. In addition, DAI has no
knowledge, which suggests that [EI] has knowingly or
intentionally failed to comply with the requirements of the
Contract[ ] Disputes Act or has acted in bad faith.

Id. The Court found that the prime contractor’s cover letter conveyed “a clear intent to
certify the underlying claims” and that the subcontractor’s certifications were “further
evidence” of that intent. The Court held, “[t]aken together, [the cover letter and
subcontractor’s certification] are sufficient to constitute a defective certification within
the meaning of 7103(b)(3).” Id.

Taken together, the certifications produced by Haskell and ENFRA constitute a
defective, but remediable, certification.

While appellant may have intended to follow the guidance from Turner and
Transamerica, there is a critical factual distinction that we cannot overlook—both of
those cases involved CDA-compliant certifications executed by the prime contractor
which were challenged as “qualified” because of contemporaneous communications.
In Turner, the qualifying language was found in a separate report in which the prime
recommended rejection of the claim. 827 F.2d at 1557. In Transamerica, the
qualifying language was in a cover letter accompanying the claim. 973 F.2d at 1580.
Here, we do not have a CDA-compliant prime certification that is qualified. We have
a prime contractor’s certification which deviates from the required statutory language
(SOF ¶ 5). Thus, the decisions in Turner and Transamerica do not squarely address
the facts before us.

12
However, the Court’s decision in Dai Global is on point and serves as binding
precedent for our decision here. Like the prime contractor’s cover letter certification
in Dai Global, Haskell’s certification conveys a clear intent to certify ENFRA’s
claims, stating that it has “no reason to believe that” the claimed costs and delay were
incorrect (SOF ¶ 5). Like the subcontractor certification in Dai Global, ENFRA
provided a certification that mirrors the requirements of the CDA, thereby
demonstrating its intent to certify its claim (SOF ¶ 6). We conclude that, taken
together, these documents are sufficient to constitute a defective certification pursuant
to 41 U.S.C. § 7103(b)(3). 4

Accordingly, this defect in the certification does not deprive the Board of
jurisdiction so long as it is corrected prior to the Board’s final decision. Id.

CONCLUSION

The Navy’s motion to dismiss is denied.

Dated: May 5, 2026

LAURA J. ARNETT
Administrative Judge
Armed Services Board
of Contract Appeals

I concur I concur

J. REID PROUTY DAVID D’ALESSANDRIS
Administrative Judge Administrative Judge
Acting Chairman Acting Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

4
We do not decide whether Haskell’s certification alone constitutes a “defective
certification.”

13
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 64380, 64381, Appeals of
The Haskell Company, rendered in conformance with the Board’s Charter.

Dated: May 5, 2026

PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11337573. Public record. Not legal advice.