ABS Development Corporation ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
ABS Development Corporation ) ASBCA Nos. 60022, 60023, 60201
) 60202,60203,60204
) 60205
Under Contract No. W912GB-10-C-0047 )
APPEARANCES FOR THE APPELLANT: Thomas R. Krider, Esq.
Ashley J. Sherwood, Esq.
Howard W. Roth III, Esq.
Oles Morrison Rinker & Baker LLP
Seattle, WA
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Brett R. Howard, Esq.
Nancy Van Noortwijk-Sommer, Esq.
Paul Cheverie, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Europe
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves to dismiss these consolidated appeals for lack of
jurisdiction because, the government says, appellant did not properly certify its claims.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
Contract
On 30 September 2010, the government and appellant, ABS Development
Corporation, entered into the contract referenced above for construction work at a
shipyard in Haifa, Israel, for $26,956,562 (R4, tab 6 at 321, 324). The contract recited
that "[t]his procurement is restricted to United States firms only" (R4, tab 21 at 2).
ABS's president, Dan Gueron, signed the contract on behalf of ABS (id. at 321). On
19 September 2010, in response to concerns expressed by the government, ABS had
revised its bid proposal to make (as reflected in a revised organizational chart) all
project managers ABS employees, who would report to the Chief Executive Officer of
ABS (R4, tab 23 at 3190-91). Other ABS employees, as well as employees of
"Ashtrom Group," would report to those ABS project managers (id. at 3191). The
revised proposal represented that ABS was a United States subsidiary of Ashtrom
Group (id. at 3192).
ASBCA Nos. 60022 and 60023
On 9 March 2015, the contracting officer received from the email address
"GilGueron@Ashtrom.co.il" a claim ostensibly from ABS for $10,403,693 "regarding
the unjustified effective disallowance of a large group ... of third country
nationals ... hired by [ABS]" (R4, tab 3 at 49, 54). On 16 March 2015, the contracting
officer received from the same email address a claim, also ostensibly from ABS, for
$4,836,240 regarding "material delays" (R4, tab 2 at 45-46). The claims include the
certification language required by the Contract Disputes Act (CDA), 41 U.S.C.
§ 7103(b )( 1), for claims of more than $100,000 (R4, tab 2 at 48, tab 3 at 56). The
certifications are signed by Gil Gueron, who is listed as "Director" (id.). The
contracting officer has not acted on the claims, and on 5 June 2015, ABS appealed
their deemed denial. We docketed the "material delays" appeal as ASBCA No. 60022,
and the "disallowance" appeal as ASBCA No. 60023.
ASBCA Nos. 60201-60205
In July 2015, ABS presented to the contracting officer five claims: (1) for
$304,038 "regarding partitions over 3 m height & doorsills demolishing in
Hangar H20" (R4, tab 11 at 3060); (2) for $139,063 "regarding additional steel
cladding and insulation works ... for the extension of hangar H5" (R4, tab 13 at 3073);
(3) for $129 ,622 "regarding Hydraulic system for gate BD51 in Hangar H6" (R4,
tab 15 at 3094); (4) for $1,654,387 "regarding additional HVAC works [for] Building
B16" (R4, tab 17 at 3126); and (5) for $514,359 "regarding additional construction and
HVAC works ... for Building H-5" (R4, tab 19 at 3152).
The claims include the CDA's certification language (R4, tab 11 at 3063,
tab 13 at 3075, tab 15 at 3096, tab 17 at 3129, tab 19 at 3154). On the "Name and
Signature" lines of the certifications is typed "Yossi Carmely ," in what appears to be
Times New Roman font; above that is typed "YO»VCa.v~," in Lucida Handwriting
font, or something simiiar (id.). Y ossi Carmely is listed on the certifications as
"Project Manager" (id.).
The contracting officer has not acted on those claims. On 21 September 2015,
ABS appealed the deemed denials of the "Hangar H20," "Hangar H5," "Hangar H6,"
"Building B 16," and "additional HV AC works for Building H-5" claims. We
docketed those appeals as ASBCA Nos. 60201, 60202, 60203, 60204, and 60205,
respectively.
2
Motion to Dismiss
The government has moved to dismiss the appeals for lack of jurisdiction. With
respect to ASBCA Nos. 60022 and 60023, the government says that Gil Gueron lacked
the authority to certify claims. In response, ABS has provided the declaration of its
president, Dan Gueron (who the government concedes is authorized to certify claims
(app. opp'n at 6-7)) that "[i]n his role as Director of ABS, Gil Gueron was at all times
relevant to these appeals, and still is, duly authorized to act on behalf of, and to bind,
ABS with regard to all matters related to [the contract work], including submitting and
certifying the claims submitted for these appeals" (decl. of Dan Gueron at 1, ~ 3).
Attached to that declaration are Delaware state annual franchise tax reports listing
Gil Gueron as one of ABS's directors (id., ex. 1).
The government also moved to dismiss ASBCA Nos. 60201 through 60205 on the
basis that the underlying claims were not signed by anyone, because the electronically
typed "signatures" ofYossi Carmely are not signatures at i;tll. In response, ABS argues
that those "electronic signatures" are sufficient to bind it. Alternatively, ABS provides
"wet ink" signatures of Mr. Carmely on ABS's July 2015 certifications in question for
the claims in ASBCA Nos. 60201, 60202, 60203, 60204, and 60205 (app. opp'n at 11,
exs. 1-5).
DECISION
ASBCA Nos. 60022 and 60023
A claim of more than $100,000 must be accompanied by a signed certification
by an individual authorized to bind the contractor with respect to the claim, but a
certification without such authority is a correctable defect that does not deprive the
Board of jurisdiction to entertain an appeal involving the claim. Bell Helicopter
Textron, Inc. & The Boeing Co., ASBCA No. 59561, 15-1 BCA ~ 36, 111 at 176,293
(addressing 41 U.S.C. § 7103(b) and Federal Acquisition Regulation (FAR) 33.207.
The certification may be executed by any person authorized to bind the contractor with
respect to the claim. FAR 33.207(e).
We possess jurisdiction to entertain ASBCA Nos. 60022 and 60023 because the
claims underlying those appeals are accompanied by signed certifications; the question is
whether those certifications need correction. The government challenges Gil Gueron's
authority to certify the claims because, the government says, Gil Gueron is an employee
of Ashtrom, not ABS, and that ABS promised, before it was awarded the contract, that
only ABS employees would manage the project work. The government insists (we gather
because the procurement could only have been awarded to a United States firm) that
"[ w ]hat the Government wants, and is entitled to get, is that these claims be certified by
someone who is an actual employee of the prime contactor, ABS" (reply 6-7).
3
We find no such entitlement. FAR 33.207(e) provides that "[t]he certification
may be executed by any person authorized to bind the contractor with respect to the
claim" (emphasis added); there is no further requirement that the person also be an
employee of the contractor. Here, ABS's president has declared that the person who
certified the claims was, and still is, "duly authorized to act on behalf of, and to bind,
ABS with regard to all matters related to" the contract work. We find that declaration
credible, and that Gil Gueron is authorized to certify the claims. Cf Bell Helicopter,
15-1 BCA ii 36, 111 at 176,293 (citing with approval Sade/mi Joint Venture v. Dalton,
5 F .3d 510, 513 (Fed. Cir. 1993), and parenthetically explaining that the Sa/demi court
relied on affidavits to conclude that certifier had authority). Whether ABS broke a
promise to the government by having Gil Gueron and not some other person certify the
claims does not mean that he is not "authorized to bind the contractor with respect to
the claim[s]." For all purposes of the claim certification requirement, ABS is bound to
those claims. Their certifications are not defective, and need no correction.
ASBCA Nos. 60201, 60202, 60203, 60204, and 60205
We do not possess jurisdiction to entertain ASBCA Nos. 60201, 60202, 60203,
60204, and 60205. The Board cannot entertain an appeal involving a claim of more
than $100,000 unless the claim was the subject of a signed certification. See
Teknocraft, Inc., ASBCA No. 55438, 08-1BCAii33,846 at 167,504. An unsigned
certification is a defect that cannot be corrected. Id. at 167,504-05.
A signature is a discrete, verifiable symbol that is sufficiently distinguishable to
authenticate that the certification was issued with the purported author's knowledge
and consent or to establish his intent to certify, and, therefore, cannot be easily
disavowed by the purported author. See Teknocraft, 08-1BCAii33,846 at 167,504-05
(addressing FAR 2.101). Here we are not confronted with an issue of "electronic
signatures"; rather, we are confronted with several typewritings of a name (presumably
typewritten by electronic means), purporting to be signatures. However, a typewritten
name, even one typewritten in Lucida Handwriting font, cannot be authenticated, and,
therefore, is not a signature. Cf id. (typewritten "//signed//" not a signature because it
cannot be authenticated). That is, anyone can type a person's name; there is no way to
tell who did so from the typewriting itself. See id.The claim certifications purportedly executed by Y ossi Carmely in ASBCA
Nos. 60201, 60202, 60203, 60204, and 60205 are not signed; rather, the name
"Yossi Carmely" is typed twice on each certification, once in what appears to be Times
New Roman font, and a second time, above the first, in Lucida Handwriting font, or
something similar. Anyone could have typed those names, even the ones in "Lucida
Handwriting"; there is no way to authenticate any of them. Y ossi Carmely could easily
disavow them, regardless of whether he does, or ever would, disavow them. Because the
4
certifications are unsigned, and because that is not a correctable defect, we lack jurisdiction
to entertain ASBCA Nos. 60201, 60202, 60203, 60204, and 60205, and dismiss them.
Accordingly, we find it unnecessary to address the government's alternative argument that
the purported certifications of the claims underlying ASBCA Nos. 60202 and 60204 refer
not to those claims, but to other claims entirely. In addition, because the unsigned
certifications are not a correctable defect, we find it unnecessary to consider the "wet ink"
certifications that ABS provided in response to the motions to dismiss.
CONCLUSION
We have considered the parties' other arguments, but because of this decision,
need not address them.* The motion is granted with respect to ASBCA Nos. 60201,
60202, 60203, 60204, and 60205, which are dismissed. Otherwise, the motion is denied.
Dated: 17 November 2016
~~
.--~MCILIL
Administrative Judge
Armed Services Board
of Contract Appeals
4~~ JAJ~---~rrr//
MARK N. STEMPLE~ RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
* In particular, nothing in the government's 28 October 2016 filing alters our decision.
5
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 60022, 60023, 60201,
60202, 60203, 60204, 60205, Appeals of ABS Development Corporation, rendered in
conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
6