Contract Claims

Embedded in all contracts is the right of the contractor to submit a claim to the government when it believes the government has in some way, caused the contractor to perform additional work and/or incur additional costs than it otherwise anticipated or proposed. This right applies to all claims that are not “routine” in nature, such as an invoice for products delivered or services performed, that are not in dispute when submitted to the government.1 A claim must be prepared in writing and submitted to the contracting officer for a decision, generally within sixty (60) days, and it must be certified if it exceeds $ 100,000.2 A claim then is a “written demand or a written assertion by one of the contracting parties, as a matter of right, the payment of a sum certain, the adjustment or interpretation of the contract terms, or other relief arising under or related to the contract.”3

Any claim for $ 100,000 or more must be certified.4 A proper certification is required to have a valid claim although the validity of the certification and the merits of the claim may be decided separately.5 The certification language in the FAR should be used verbatim, to avoid jurisdiction problems, and it must be signed, or executed, by an individual authorized to bind the contractor.6 Hence the person who signs the certification must have knowledge, a) of the claim; b) of the basis of the claim; and c) of the accuracy and completeness of the supporting data.7

But what is meant by “signed”? What is a “signature”? A signature is a “discrete, verifiable symbol of an individual which, when affixed to a writing with knowledge and consent of the individual, indicates a clear intention to authenticate the writing.”8

The issue of a signature on a claim as discussed in the Appeal of Teknocraft, Inc., ASBCA No. 55438, April 3, 2008 under contract No. DAAA09-01-C-0034. The Armed Services Board of Contract Appeals, (“ASBCA”) or the “Board” considers an actual, scrawled signature, very important.

Teknocraft was required by the contract to furnish ammunition and explosives, specifically 1,008,616. 40 MM M918 Ballistic Projectile Assemblies. Apparently the government required Teknocraft to acquire x-ray machines to inspect the munitions. Teknocraft alleged the government required the machines and submitted a certified claim for $ 284,992. The claim was “//signed//” by the President. The government averred it did not have a signed certification, because the claim was not signed by pen and ink, and denied the claim. The Board concurred. Teknocraft sent the claim via e-mail but the signature was not digitally or electronically signed.9

“ The Board has not interpreted the requirement to execute the certification of a claim as obligating the certifier to sign the claim certification.” The “certification is properly executed” through the FAR’s definition of a “signature.” The ASBCA stated that “//SIGNED //” is not a discrete, verifiable symbol. It is not a unique signature. The generic notation is not sufficiently distinguishable to authenticate that the certification was issued with [the President’s] knowledge and consent or establish his intent to certify. The notation “//signed//” fails to convey the requisite intent, consent and authentication of the certification.

The failure to sign the certification in pen and ink is a fatal defect. The Board explained “the necessity to sign the certification is to hold the signer accountable for any falsities contained therein.” Without a signature, the purported author of the certification could just as easily disavow the certification because “//signed//” cannot be authenticated.

The moral of the story is simple - whenever you have to certify a claim, be sure that you sign the certificate with a real pen with black ink. Deliver it by fax or courier or mail or any way practicable. Avoid using e-mail unless you have an authenticated signature. If you don’t properly sign the certificate, your claim will fail.

Tom Petruska
Contracts Unlimited Incorporated

The foregoing is not a legal opinion or legal advice. You should consult your attorney for legal services.

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