PROPER CERTIFICATION (SHALL MEANS SHALL)

In another case of shall means shall, the Civilian Board of Contract Appeals (CBCA) dismissed an appeal on May 30th in which the contractor had decided to get creative with the certification of claims requirement in FAR 33.207(c).  The contractor certified its claim as follows:

I certify that this invoice is correct and in accordance with the terms of the contract and that the costs incurred herein have been incurred, represent the payments made by the Contractor except as otherwise authorized in the payments provision of the contract, and properly reflect the work performed.

FAR 33.207(c) states the contractor shall certify 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 on behalf of the Contractor.

A defective certification deprives the judicial tribunal of jurisdiction over the claim; but the defective certification can be corrected under certain circumstances.  But not in this case.

If the certification is made with intentional, reckless or negligent disregard for the applicable regulation, it is not correctable.

In this case, the contractor's certification wholly omitted the words "the claim is made in good faith."  Fatal.  It also omitted "the supporting data are accurate and complete to the best of my knowledge and belief."  Again, fatal.  Finally, the certification omitted the third and fourth prongs of the certification.  Finally, fatal.

The CBCA determined that the contractor's failure to submit a certification using the proper language was either intentional or negligent, not innocent or inadvertent.  Case dismissed.

The lesson (for government and industry):  Shall means shall.

www.spriggslawgroup.com