HEB International Logistics

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

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HEB International Logistics ) ASBCA No. 59448

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Under Contract No. W91B4N-09-D-5003 )

APPEARANCE FOR THE APPELLANT: Mr. Hasib Akbary

CEO

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.

Army Chief Trial Attorney

Erica S. Beardsley, Esq.

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE NEWSOM

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

Appellant appeals from a contracting officer's final decision denying two of its

claims. The government moves to dismiss this appeal for lack of jurisdiction on the basis

that appellant's claims were not certified as required by the Contract Disputes Act of

1978 (CDA), 41 U.S.C. §§ 7101-7109. Appellant opposes. For the reasons explained

below, the Board grants the government's motion.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

On 15 March 2009, the United States Army Bagram Regional Contracting Center

and HEB International Logistics (HEB) entered into Contract No. W91B4N-09-D-5003,

a multiple award indefinite delivery, indefinite quantity contract for trucking services

throughout Afghanistan (R4, tab 1 at 1, 4-5). The contract incorporated Federal

Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS -

COMMERCIAL ITEMS (OCT 2008) (R4, tab 1 at 23). Paragraph (d), Disputes, of the

Contract Terms and Conditions - Commercial Items clause in tum incorporated

FAR 52.233-1. FAR 52.233-1, DISPUTES (JUL 2002), in effect at the time of contract

execution, provided in pertinent part:

( d)(2)(i) The Contractor shall provide the certification

specified in paragraph (d)(2)(iii) of this clause when

submitting any claim exceeding $100,000.

(iii) The certification shall state as follows: "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 Contractor believes the

Government is liable; and that I am duly authorized to certify

the claim on behalf of the contractor."

48 C.F.R. § 52.233-l(d)(2) (2009).

By letter dated 9 May 2013, Kahiga A. Tiagha, Esq., on behalf of HEB, submitted

a claim in the amount of $6,057,842 for the payment of four invoices to a contract

specialist with the Army Contracting Command - Rock Island Reachback Closeout

Division. By letter dated 1 July 2013, Mr. Tiagha submitted a second claim on behalf of

HEB in the amount of$3,424,923.50 for the government's allegedly improper

withholding of payments and/or assessment of penalties under the contract. Neither

claim contained the certification prescribed by FAR 52.233-l(d)(2)(iii), nor any other

form of certification. (R4, tabs 44, 45) HEB's 1July2014 claim letter, however,

contained the following language upon which it relies:

I am writing to provide evidence of the outstanding

payment obligation of the [Army] to [HEB] in the amount of

[$3,424,923.50] over the months of July, August and

September of 2011.

In conclusion, HEB contends that the foregoing

combined with the attached Exhibits should provide

incontrovertible evidence ofHEB's compliance with HNI

[Host Nation Trucking] rules and the Army's incorrect

application of the same. Accordingly, HEB once again

asserts that it has a legitimate claim for [$3,424,923.50] for

services provided to the Army under HNI.

(R4, tab 45 at 1, 5)

The contracting officer issued a final decision, dated 28 April 2014, denying both

ofHEB's claims (R4, tab 48). HEB timely appealed the denial of its claims by email

dated 27 July 2014. The Board docketed the appeal as ASBCA No. 59448.

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DECISION

For contractor claims exceeding $100,000, the CDA requires the contractor to

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.

41 u.s.c. § 7103(b)(l).

The Disputes clause incorporated into HEB's contract, FAR 52.233-1, implements

the CDA certification requirement and prescribes specific certification language. When

required, certification in accordance with the CDA is a prerequisite to this Board's

jurisdiction. New Iraq Ahd Co., ASBCA No. 58800, 14-1 BCA ~ 35,479 at 173,953;

Special Operative Grp., LLC, ASBCA No. 57678, 11-2 BCA ~ 34,860 at 171,480. A

defective certification does not deprive the Board of jurisdiction, 41 U.S.C. § 7103(b)(3);

however, the complete absence of a certification where required does and dictates

dismissal. CCJE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ~ 35,700 at 174,817;

Baghdadi Swords Co., ASBCA No. 58539, 13 BCA ~ 35,395 at 173,665. The fact that a

contracting officer purported to issue a final decision does not remedy the absence of a

certification and has no legal bearing on the Board's jurisdiction. Abdul Ahad Khadim

Constr. Co., ASBCA No. 59206, 14-1 BCA ~ 35,694 at 174,766; Baghdadi Swords,

13 BCA ii 35,395 at 173,665.

Both HEB's 9 May 2013 claim and its 1 July 2013 claim are in excess of

$100,000, and thus were required to be certified in accordance with the CDA. However,

neither claim contained the prescribed certification nor any other certification. Appellant

nonetheless argues that the Board has jurisdiction over this appeal because certain

language in its 1 July 2013 claim letter, in its view, parallels some of the requirements of

a proper CDA certification. Relying on James M Ellett Constr. Co. v. United States,

93 F.3d 1537, 1545-46 (Fed. Cir. 1996), appellant contends that "[e]xact recitation of the

CDA language is not required and a defect does not bar the Board from jurisdiction"

(app. opp'n at 1).

Appellant's argument is unpersuasive. Black's Law Dictionary defines the term

"certify" to mean, as relevant here: "l. To authenticate or verify in writing. 2. To attest

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as being true or as meeting certain criteria." BLACK'S LA w DICTIONARY 220 (7th ed.

1999). As we stated in Hawaii CyberSpace:

"The purposes of the certification requirement are to

discourage the submission of unwarranted contractor claims

and to encourage settlements," Paul E. Lehman, Inc. v.

United States, 673 F.2d 352, 354, 230 Ct. Cl. 11, 14 (1982);

"to push contractors into being careful and reasonably precise

in the submission of claims to the contracting officer,"

Tecom, Inc. v. United States, 732 F.2d 935, 937 (Fed. Cir.

1984); and to enable the government "to hold a contractor

personally liable for fraudulent claims," Transamerica

Insurance Corp. v. United States, 973 F.2d 1572, 1580 (Fed.

Cir. 1992).

ASBCA No. 54065, 04-1BCA~32,455 at 160,533.

We need not decide whether the language appellant relies upon would give rise to

a correctable defect if it had been included in a certification. 1 Neither claim contained a

statement certifying or attesting to the veracity of any such language. To hold, as

appellant would have us do, that a claim letter that contains some uncertified language

that parallels some of the required certification language is sufficient for the Board's

jurisdiction would eviscerate the certification requirement and frustrate the purposes of

such certification. Because appellant's claims failed to include any certification, the

Board lacks jurisdiction over this appeal.

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Such a determination requires consideration of whether "the flaws in [the] attempted

certification are so significant that, rather than treat the certification as

'defective' ... we must effectively conclude that no certification was submitted."

Western Plains Disposal, ASBCA No. 56986, 11-1 BCA ~ 34,617 at 170,613

(quoting SAE/Americon-Mid-Atlantic, Inc. v. Gen. Servs. Admin.,

GSBCA No. 12294, 94-2 BCA ~ 26,890 at 133,852).

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CONCLUSION

The government's motion to dismiss for lack of jurisdiction is granted. This

appeal is dismissed without prejudice to appellant's submission of a certified claim or

claims to the contracting officer.

Dated: 12 March 2015

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

/?~~··

MARK N. STEMPLER RICHARD SHACKLEFORD

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals in ASBCA No. 59448, Appeal of HEB

International Logistics, rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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