_______________________________________________ RESPONDENT'S MOTIONS TO DISMISS AND FOR MORE DEFINITE STATEMENT DENIED: January 4, 1995 _______________________________________________ GSBCA 12915 HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Ogden, Lieberman, Gaughan & Stone, Houston, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. This appeal involves Herman B. Taylor Construction Company (Taylor Construction), appellant, and the General Services Administration (GSA), respondent. Taylor Construction appeals from the contracting officer's decision pricing a change order for redesign of footing work at the generator building site, United States Post Office/Courthouse, Galveston, Texas. Respondent has moved to dismiss, arguing that Taylor Construction has not filed a certified claim that was in dispute as required by the Contract Disputes Act of 1978 (CDA). We conclude that on May 10, 1993, Taylor Construction attempted to certify its claim; its certification, however, was defective. Following recent amendments to the CDA, we deny the motion to dismiss and retain jurisdiction pending correction of the defective certification. Respondent also moves for a more definite statement, maintaining that the complaint is vague. We disagree and deny that motion. Findings of Fact On April 12, 1993, GSA issued unilateral modification PC15 - -priced at $24,604.04--for redesign of a footing for the generator building. Appeal File, Exhibit 25. On April 14, Taylor Construction wrote the contracting officer: "Are you directing work to be done as described in PC 15? If so, by this letter, we protest both the dollar amount and no time/calendar day increase for this work." Id., Exhibit 27. On May 3, GSA directed Taylor Construction to commence work described in the modification. Id., Exhibits 25, 35. By response of May 5, Taylor Construction agreed to perform the work. Id., Exhibit 36. On May 10, Taylor Construction forwarded a price submission for $105,029.28 for the modification. Taylor Construction stated in that letter: We are making this claim in good faith. We feel the supporting documentation is accurate to the best of our understanding and belief. We feel the amount requested is accurate, therefore the Government is liable and should pay the extra work as priced. . . . . The cost quoted in this proposal is accurate to the best of our understanding and belief of the scope of work. We hereby request a change modification in the above amount [$105,028.28] and a time extension requested for 40 days contingent upon weather conditions. . . . . Your favorable consideration on this matter would be greatly appreciated. Id., Exhibit 38. Taylor Construction included no supporting data with this proposal. Id. The facsimile cover sheet transmitting the proposal stated "Please find 'Notice of Claim' for redesign of generator footings." The document itself was entitled "Notice of Claim." Id. On January 10, 1994, the contracting officer requested supporting invoices from Taylor Construction, and said that "this claim will be considered closed if supporting information is not received by January 31, 1994." Appeal File, Exhibit 40. On January 27 in response to this letter appellant submitted a further cost breakdown, this time for $118,542.40, with copies of supplier invoices and checks. Taylor Construction stated: "Please consider this as a claim for extra work on the generator building revised footings in the amount of $118,542." Taylor Construction also said that it would be willing to meet with GSA representatives for review of the checks and invoices. Id., Exhibit 41. This submission, unlike the submission of May 10, 1993, contained no representations as to the accuracy of the costs. The submission was not certified. Id. On March 28, 1994, the contracting officer informed Taylor Construction that she would issue a "final response" by April 15. Appeal File, Exhibit 45. On April 15, the contracting officer offered Taylor Construction additional compensation of $12,800.61 for the work directed by the modification. Id., Exhibit 46. On April 26, in response, Taylor Construction deemed GSA's offer unacceptable. Taylor Construction maintained that GSA owed it $81,137.75, i.e., the difference between the total of $37,404.65 that the Government offered for the work and its claim of $118,542.40. Id., Exhibit 47. Taylor Construction stated: "[W]e ask you as the contracting officer to make your final determination on this above referenced project and the amount GSA will pay." Id. By letter of May 8, the contracting officer denied the claim. Discussion Pursuant to the CDA, this Board has jurisdiction "to decide any appeal from a decision of a contracting officer (1) relative to a contract made by its agency." 41 U.S.C. 607(d) (1988). Under the CDA, contracting officers issue two types of decisions: (1) unilateral decisions on Government claims and (2) decisions on contractor claims against the Government. As to the latter, the CDA requires that "all claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision." 41 U.S.C. 605(a) (1988). For a contractor's submission to be a "claim" under the CDA, the submission must seek payment of a sum certain about which a dispute exists at the time of submission. 48 CFR 33.201 (1993); Dawco Construction Inc. v. United States, 930 F.2d 872, 877-78 (Fed. Cir. 1991). Appellant maintains that its submission of May 10, 1993, was a validly certified claim. The first issue presented is whether the claim was in dispute, since a certification attached to a proposal that is not in dispute does not satisfy the jurisdictional requirements of the CDA. Santa Fe Engineers Inc. v. Garrett, 991 F.2d 1579, 1583 (Fed. Cir. 1993). We conclude that the claim was in dispute. GSA had earlier priced the change at $24,604.04. By letter dated April 14, Taylor Construction had clearly disputed both the change order itself and the pricing of the change. Since respondent had estimated $24,604.04 to perform the change, Taylor Construction's pricing $105,029.28 in its submission of May 10 placed the Government's pricing in dispute. We do not regard the contracting officer's response seeking more information as negotiation leading to the existence of a dispute. We regard the subsequent correspondence as post-dispute negotiations, which do not taint the existence of a claim or a dispute. P.J. Dick Inc. v. General Services Administration, GSBCA 12052, 94-1 BCA 26,276, at 130,735. Before the contracting officer can issue a decision on a contractor claim of more than $50,000, the CDA requires that the contractor certify the claim. 41 U.S.C. 605(c)(1) (1988). A contracting officer's decision on an uncertified contractor claim of more than $50,000 is a nullity and boards of contract appeals do not have jurisdiction to hear appeals of contracting officer's decisions on uncertified claims. W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338-39 (Fed. Cir. 1983). The CDA sets forth the requirements for certification for claims of more than $50,000: "[T]he contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable." 41 U.S.C. 605(c)(1) (1988). This provision requires that there be a certification and that it contain three affirmations: (1) that the claim is made in good faith, (2) that the supporting data are accurate and complete to the best of the contractor's knowledge and belief, and (3) that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable. See Heyl & Patterson, Inc. v. O'Keefe, 986 F.2d 480, at 483-84 (Fed. Cir. 1993). The recent amendment to the CDA provides: "a defect in the certification of a claim shall not deprive . . . an agency board of contract appeals of jurisdiction over that claim. Prior to the entry of . . . a decision by an agency board of contract appeals, the . . . agency board shall require a defective certification to be corrected." 41 U.S.C.A. 604(c)(6) (West Supp. 1994). Did Taylor Construction attempt to certify its claim of May 10, although it did not use the term "certify?" We conclude that Taylor Construction did, but that the omission of the term "certify" or any equivalent term renders the certification substantially defective. It is evident from the above-quoted portions of the claim of May 10 that Taylor Construction attempted to certify--it made efforts to reproduce the three affirmations required by the CDA. Taylor Construction, however, besides the defect mentioned above, used the term "feel" in two of its affirmations; the statement of its feelings qualified the attempted certification, which must be unequivocal. Liberty Environmental Specialties Inc., VABCA 2948, 89-3 BCA 21,982; see also Cochran Construction Co., ASBCA 34378, 87-3 BCA 19,993. Following the recent amendment to the CDA, these defects must be removed by use of the prescribed language.[foot #] 1 A corrected certification should be submitted before the Board enters a final decision. ----------- FOOTNOTE BEGINS --------- [foot #] 1 There are, within Taylor Construction's phrasing of the three affirmations, minor variances from the prescribed language which should be corrected. ----------- FOOTNOTE ENDS ----------- Respondent moves for a more definite statement of the claim. We do not consider the complaint as vague. The issue is well defined. Taylor Construction now seeks $81,137.75, i.e., the difference between the total of $37,404.65 that the Government has offered for the work and the contractor's most recent pricing of the change at $118,542.40. Decision We DENY respondent's motions to dismiss for lack of jurisdiction and for more definite statement. _________________________ ANTHONY S. BORWICK Board Judge We concur: ______________________________ EDWIN B. NEILL Board Judge _____________________________ CATHERINE B. HYATT Board Judge