W.M. Schlosser Co. v. United States

705 F.2d 1336, 30 Cont. Cas. Fed. 70,985, 1983 U.S. App. LEXIS 13588
CourtCourt of Appeals for the Federal Circuit
DecidedApril 22, 1983
DocketAppeal No. 83-527
StatusPublished
Cited by109 cases

This text of 705 F.2d 1336 (W.M. Schlosser Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
W.M. Schlosser Co. v. United States, 705 F.2d 1336, 30 Cont. Cas. Fed. 70,985, 1983 U.S. App. LEXIS 13588 (Fed. Cir. 1983).

Opinion

FRIEDMAN, Circuit Judge.

This is a joint motion by the parties to transfer this case to the United States Claims Court and to dismiss the petition to review filed in this court. We deny the transfer, and hold that we have no jurisdiction over the appeal.

I.

This appeal challenges a decision of the General Services Administration Board of Contract Appeals (the Board) denying the appellant’s claim for additional compensation under a government contract entered into in September 1977.

In their joint submissions, the parties have set forth the pertinent facts. In February 1980, the appellant submitted an uncertified claim of $121,130 to the contracting officer. The contracting officer denied the claim on June 2,1980, and informed the appellant that it had the option of appealing under either the disputes clause of the contract or the Contract Disputes Act, 41 U.S.C. § 601 et seq. (1982).

Appellant appealed the contracting officer’s decision to the Board on July 24, 1980.

In a letter to the Board indicating its intent to appeal, the appellant stated that “[i]n addition, we elect to proceed with this appeal pursuant to the new contract disputes act.” The appellant also included with the letter a document which retroactively certified that the claim previously submitted to and decided by the contracting officer was “made in good faith” and “to the best of my knowledge and belief” was accurate.

The Board denied the appeal on September 16, 1982, and the petition to review was filed in this court on October 25, 1982.

The motion, as augmented by submissions requested by the court, raises two issues: (1) whether this court is without jurisdiction over the appeal from the Board decision under the Contract Disputes Act “because appellant did not submit a certified claim to the contracting officer”; and (2) whether the failure to certify the claim before the contracting officer renders the appellant’s election to proceed under the Act invalid. The parties contend that the failure to certify had that effect and that this case therefore is one under the Wunderlich Act, over which the Claims Court has jurisdiction under the Tucker Act.

II.

We agree with the parties that we have no jurisdiction because the claim the appellant submitted to the contracting officer was not certified.

Since the contract was entered into prior to the effective date of the Contract Disputes Act (March 1,1979), the appellant had the choice to proceed under either the Act or the disputes clause of the contract. See 41 U.S.C. § 601, note (Supp. IV 1980); Skelly & Loy v. United States, 685 F.2d 414 (Ct.C1.1982); Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 647 (Ct.C1.1981). Under such disputes clauses, “certification was not a jurisdictional prerequisite.” Skeily & Loy, 685 F.2d at 418.

[1338]*1338There is no question that the appellant elected to proceed under the Act. The parties have so recognized in their supplemental submissions. Moreover, the record shows that the election was “conscious and unwavering.” See Tuttle/White Constructors, Inc., 656 F.2d at 647 (Ct.C1.1981). The contracting officer’s decision informed the appellant of its choices, and the appellant’s letter to the board instituting its appeal stated that it “elect[ed] to proceed” under the Act.

The appellant’s attempt retroactively to certify its claim before the Board further demonstrates that the appellant made a voluntary and informed decision to proceed under the Act. It shows that the appellant knew that certification of all claims of more than $50,000 was required under the Act, and reflects a belated attempt to comply with this requirement. The circumstances of this case are similar to those in Essex Electro Engineers, Inc. v. United States, 702 F.2d 998 (Fed.Cir.1983), where we recently held that a contractor’s decision to proceed under the Act was binding. See also Tuttle/White Constructors, Inc., supra.

Since the appellant elected to proceed under the Act when it appealed to the Board, it must abide by the Act’s procedural requirements for taking this particular route. Section 6(c)(1) of the Contract Disputes Act, 41 U.S.C. § 605(c)(1) (1982), requires the certification of all claims in excess of $50,000. The Court of Claims repeatedly has held that a claim of more than $50,000 “cannot be considered under the statute” unless it was “properly certified” when it was submitted to the contracting officer. Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 355 (Ct.Cl.1982). See also Skelly & Loy, supra; Troup Bros. v. United States, Ct.Cl. No. 622-80C (order entered June 8,1982); W.H. Moseley Co. v. United States, 677 F.2d 850 .(Ct.Cl.1982). As the court stated in Lehman “[u]nless that [certification] requirement is met, there is simply no claim that the court may review under the Act.” 673 F.2d at 355.

Although those decisions all involved cases in which direct review was sought in the Court of Claims of the decision of the contracting officer under section 10(a)(1) of the Contract Disputes Act, 41 U.S.C. § 609(a)(1) (1982), rather than, as here, of the Board’s decision, we see no reason to apply a different rule in the latter situation. As indicated in Skelly and Loy, “the failure to certify the claim submitted to the contracting officer should taint every ‘decision’ that follows.” 685 F.2d at 419. An uncertified claim “has not been ‘properly submitted,’ so the contracting officer does not have the authority to issue a decision.” Id.

Here, as in Lehman, the fact that “a contracting officer has rendered a decision on the merits of an uncertified claim was of no consequence, since the officer ‘had no authority to waive a requirement that Congress had imposed.’ ” See Skelly & Loy, 685 F.2d at 419, quoting Lehman, 673 F.2d at 356. The Board likewise cannot waive the certification requirement. See Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390-91 (Fed.Cir.1982) (holding that a board of contract appeals cannot waive the statutory 90-day limit for appeals to the board). Unless the claim was certified when it was submitted to the contracting officer, the Board should have neither heard nor ruled on the appeal.

The policy considerations underlying the certification requirement are no less applicable to challenges to decisions of contract appeals boards than to those of contracting officers.

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Bluebook (online)
705 F.2d 1336, 30 Cont. Cas. Fed. 70,985, 1983 U.S. App. LEXIS 13588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wm-schlosser-co-v-united-states-cafc-1983.