WIT Associates, Inc. ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
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WIT Associates, Inc. ) ASBCA No. 6154 7
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Under Contract No. N68836-10-D-0002 )
APPEARANCE FOR THE APPELLANT: Mr. Steven P. O'Carroll
CFO
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APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
Robert R. Kiepura, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
ON THE GOVERNMENT'S MOTION TO DISMISS
The government moves to dismiss the appeal for lack of jurisdiction, arguing
that the claim is not properly certified.
STA TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
In 2009, the government awarded a transportation services contract to WIT
Associates, Inc. (R4, tab 1). In 2016, WIT's president, Eugenio Smoot, presented to
the contracting officer a certified claim for $866,051.79 (R4, tab 2 at 306). The
certification, which Mr. Smoot signed, reads:
In accordance with [Federal Acquisition
Regulation] 52.233-1, I certify that this 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 Guardian believes the Government is
liable; and that I am authorized to certify the claim on
behalf of Guardian.
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(R4, tab 2 at 314 (emphasis added)) WIT says that:
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Guardian is the parent company of WIT. The ownership
and management is one and the same.
(App. resp. at 1)
DECISION
For claims of more than $100,000 made by a contractor, the contractor shall
certify that (A) the claim is made in good faith; (8) 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). Although that certification is a
precondition to the Board's jurisdiction, a defective certification does not deprive the
Board of jurisdiction, but must be corrected prior to a final judgment. Air Services,
Inc., ASBCA No. 59843, 15-1BCA136,146 at 176,426 (citing 41 U.S.C.
§ 7I03(b)(3)). Here the certification is defective but correctable: it fails to meet at
least the third and fourth attestations of a proper certification (by attempting to certify
the claim in the name of, and on behalf of, an entity (Guardian) other than WIT). but
meets at least the first attestation because it certifies that the claim is made in good
faith.* Cf id. at 176,424, 176,427 (defective certification meeting only two of the
required attestations was correctable); Western Plains Disposal. ASBCA No. 56986.
11-1 BCA 134,617 at 170,612-13 (defective certification \Vas correctable where it
certified that "cost or pricing data ... submitted .. .in support of [REA J are accurate.
complete, and current"); Northwest Marine, Inc .• ASBCA No. 41702, 91-2 BCA
124,020 at 120,272-73 (claim certifier's position within contractor's parent company
irrelevant to determination of adequacy of certification), recon. denied, 91-3 BCA
124,079 at 120,527. Accordingly, the motion to dismiss is denied. and an order
requiring correction of the certification will follow.
* The government does not specifically address, and, for the moment, we do not
consider, whether the challenged certification meets the second attestation.
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CONCLUSION
The motion to dismiss for lack of jurisdiction is denied.
Dated: December 19, 2018
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T~CI
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~EFORD OWEN C. WILSON
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. 61547, Appeal of WIT
Associates, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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