Everyone knows the old adage about a tree falling in the woods that makes a sound (or does it?).  Recently, we’ve had to consider a similar question about a contractor’s claim certification under the Contract Disputes Act.  If a certification is made, but later lost, does it still count? 

In a word:  No.

Contractors submitting claims on federal contracts that exceed $100,000 must include the following certification as part of the submission to the contracting officer:

“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 the claim on behalf of the contractor.”

On a recent VA contract claim appealed to the Civilian Board of Contract Appeals, the contractor represented in its complaint that a proper certification was provided, but it was unable to “locate” a copy among the six boxes of supporting materials provided to the CO.

Despite the contractor’s argument that the claim never would have made it to the final decision stage without a proper certification, the Board was not convinced.  Instead, the claim was denied because, as the Board Judge stated, the burden to provide evidence of the certification falls on the contractor.

Importantly, the Board left the window open a crack for cases where a certification is provided, but then lost.  Under such circumstances, a contractor should be prepared to provide affidavits or declarations from the fact witnesses who prepared and signed the certification.

The Board’s decision stands as another reminder that contractors must be sure to meet all of the procedural requirements when pursuing a claim.  A seemingly minor defect can be all that stands between you and the money you are legitimately owed.