CBCA 3426

EHR Doctors, Inc

Jul 23, 2013Judge BorwickSOCIAL SECURITY ADMINISTRATION
Not published in the listingDismissed for lack of jurisdiction

Key Facts

Appellant
EHR Doctors, Inc
Respondent agency
SOCIAL SECURITY ADMINISTRATION
Judge
Borwick
Case number
CBCA 3426
Decided
Jul 23, 2013The decision states Jul 23, 2013 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
The decision's own appearances block names no outside firm, which happens when the appellant appeared pro se, through one of its own officers, or through its in-house counsel.
Outcome
Dismissed for lack of jurisdiction
The appeal is DISMISSED FOR LACK OF JURISDICTION.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

Jurisdiction and timeliness

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Appearances

For the appellant
Richard Braman
EHR Doctors, Inc.
Pompano Beach, FL
For the respondent
Lucinda E. Davis and Dorothy M. Guy
Office of the General Counsel, Social Security Administration
Baltimore, MD
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision5 pages, 8,283 characters, read from the Board's own documentDecided Jul 23, 2013 on its own faceRespondent SOCIAL SECURITY ADMINISTRATION Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Authorities cited

3 authorities read from this decision's own text, grouped by the body of law each comes from. Select one to read it at its publisher.

Federal Acquisition Regulation1

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Cases cited

2 cases this decision cites, grouped by the forum that decided each, in the order it first names them. 1 of them opens at a publisher; the rest are shown without a link because no published copy of them was confirmed.

Federal Circuit1
United States v. Newport News Shipbuilding & Dry Dock Co.933 F.2d 996(Fed. Cir. 1991)

Read from the decision's own words with no model involved: the party names and the citation are as the decision prints them. A case cited to a reporter is not held here, so where it opens was confirmed one citation at a time against an outside database and is labelled as leaving this app; a citation that database could not place, or matched to more than one case, is shown without a link rather than guessed at. A case named without a citation of any kind carries nothing to read, so it is left out rather than guessed at, and this is a floor on what the decision cites.

DISMISSED FOR LACK OF JURISDICTION: July 23, 2013

CBCA 3426

EHR DOCTORS, INC.,

Appellant,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Richard Braman, Vice President of EHR Doctors, Inc., Pompano Beach, FL, appearing for Appellant.

Lucinda E. Davis and Dorothy M. Guy, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent.

Before Board Judges BORWICK, VERGILIO, and STEEL.

BORWICK, Board Judge.

The Social Security Administration (SSA or respondent) has submitted a motion to dismiss this appeal for lack of jurisdiction because appellant failed to submit a certified claim to the contracting officer as required by the Contract Disputes Act (CDA). Appellant has moved the Board to accept correction of an alleged defective certification or alternatively to suspend proceedings. We deny appellant’s motion, and because we lack jurisdiction over this appeal, we grant respondent’s motion to dismiss.

Background

Appellant and respondent entered into a contract on September 18, 2009, for the authorized release of medical information through integration with the Nationwide Health Information Network (NHIN). On March 11, 2013, respondent’s Office of Acquisitions & Grants (OA&G), through Ms. Jackie Foster, notified appellant via email that the contract was in the process of being closed out. Ms. Foster is an auditor with the OA&G, not the contracting officer. The email message requested appellant to “complete the attached Certification as to any outstanding claims against the contract.” The hard copy of the close-out document, also signed by Ms. Foster, did not use the term “certification,” but requested appellant to “inform [respondent] of any outstanding invoices or claims against this contract within [seven] days. After we receive your reply, we will proceed with contract closeout.” The close-out document had two options for appellant to check: (1) a box followed by the statement: “There are no outstanding claims,” and (2) a box followed by the statement: “The following claims/invoices are outstanding.” Appellant sent the document back to Ms. Foster with the second box checked and with the accompanying statement: The original contract awarded was in the amount of $1,000,000. SSA forcibly made a $250,000 modification to the contract with no justification and under threat of termination. [Appellant] accepted [the] modification under duress.

Contractor seeks to recover $250,000 from SSA.

This form was not accompanied by a contractor statement that one would recognize as a certification or attempted certification required by the CDA.

On June 20, 2013, having heard nothing from respondent, appellant sent an email message to Ms. Foster, stating that it would “wait to file” if it received a response to its “settlement offer” of $250,000 by the close of business the next day, and referenced the purported claim appellant had earlier sent to Ms. Foster. Appellant stated that it reserved the right to “add additional claims to this claim if we cannot reach a settlement when we file with the CBCA [Civilian Board of Contract Appeals] or the Court of Federal Claims.” The contracting officer, Ms. Syreeta Gay, replied on the same day that respondent would not enter into settlement negotiations with appellant. She noted that appellant and respondent had entered into a bi-lateral modification, that the contract between the parties was concluded, and that all payments due under the contract had been made. She did not style her reply as a contracting officer’s decision on a contractor-submitted claim. On June 25, appellant submitted a notice of appeal to the Board.

On June 27, 2013, the Board issued an order asking whether appellant had submitted a certified claim to the contracting officer or whether the contracting officer had issued a decision on a certified claim. Appellant then submitted its motion to “accept correction of a defective certification.” The Board requested respondent to reply to appellant’s motion, which resulted in respondent’s submitting its motion to dismiss for lack of jurisdiction.

Discussion

The CDA provides in pertinent part:

(a) Claims generally. --(1) SUBMISSION OF CONTRACTOR’S CLAIMS TO

CONTRACTING OFFICER. --Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.

(2) Contractor’s claims in writing. -- Each claim by a contractor against the Federal Government relating to a contract shall be in writing.

. . . .

(b) CERTIFICATION OF CLAIMS. --(1) Requirement generally. --For claims of more than $100,000 made by a contractor, the contractor shall certify that --(A) the claim is made in good faith;

(B) 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.

. . . .

(3) FAILURE TO CERTIFY OR DEFECTIVE

CERTIFICATION. – A contracting officer is not obligated to render a final decision on a claim of more than $100,000 that is not certified in accordance with paragraph (1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why any attempted certification was found to be defective. A defect in the certification of a claim does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a defective certification to be corrected.

41 U.S.C. § 7103 (Supp. IV 2011). Contractor certification of claims exceeding $100,000 is a “jurisdictional prerequisite for initiating an appeal.” 41 U.S.C. § 7103(b)(1); United States v. Newport News Shipbuilding & Dry Dock Co., 933 F.2d 996, 998 (Fed. Cir. 1991); Whiteriver Construction, Inc. v. Department of the Interior, CBCA 2045, 10-2 BCA ¶ 34,582, at 170,487; Hemmer - IRS Limited Partnership v. General Services Administration, GSBCA 16134, 04-1 BCA ¶ 32,509, at 160,814. In this matter, appellant submitted an uncertified claim exceeding $100,000 to respondent’s auditor instead of submitting a certified claim to the contracting officer. Appellant’s submission was not in compliance with 41 U.S.C. § 7103, and any contracting officer’s decision on that submission would have been a nullity. Newport News Shipbuilding, 933 F.2d at 998; W. H. Moseley Co. v. United States, 677 F.2d 850, 852 (Ct. Cl. 1982). It is not surprising, therefore, that the contracting officer did not issue a decision on appellant’s purported claim.

Appellant’s attempt at correcting what it views as a defective certification is unavailing for this docketed matter. The CDA provision allowing correction of a defective certification of a claim does not apply to a failure to submit and to certify the claim and thus is of no assistance to appellant. 48 CFR 33.201(2012); B & M Cillessen Construction Co. v. Department of Health and Human Services, CBCA 931, 08-1 BCA ¶ 33,753, at 167,084 (2007); Hemmer, 04-1 BCA at 160,814; Golub-Wegco Kansas City I, LLC v. General Services Administration, GSBCA 15387, 01-2 BCA ¶ 31,553, at 155,844; Lockheed Martin Tactical Defense Systems v. Department of Commerce, GSBCA 14450-COM, 98-1 BCA ¶ 29,717; see also Keydata Systems, Inc. v. Department of the Treasury, GSBCA 14281-TD, 97-2 BCA ¶ 29,330.

Decision

Appellant’s motion for correction of defective certification is DENIED and respondent’s motion to dismiss for lack of jurisdiction is GRANTED. The appeal is DISMISSED FOR LACK OF JURISDICTION.

________________________________

ANTHONY S. BORWICK

Board Judge

We concur:

CANDIDA S. STEEL

Board Judge

JOSEPH A. VERGILIO

Board Judge

That provision of the Federal Acquisition Regulation provides in pertinent part that “[F]ailure to certify shall not be deemed to be a defective certification.”

The Board understands that subsequent to the filing of this appeal, appellant has submitted a certified claim to the contracting officer for consideration. That submission does not apply to this appeal.

This is a verbatim capture of the text layer of the Board's own document in EHR Doctors, Inc, CBCA 3426. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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