________________________________________________________ DISMISSED FOR LACK OF JURISDICTION: September 10, 1992 ________________________________________________________ GSBCA 11911 THERMODYN CONTRACTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. M. V. Hernandez, Jr., Thermodyn Contractors, Inc., El Paso, TX, appearing for Appellant. M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, NEILL, and HYATT. HYATT, Board Judge. On behalf of its subcontractor, appellant, Thermodyn Contractors, Inc. (Thermodyn), appeals the decision of the contracting officer denying its request for an equitable adjustment to the contract price and time for completion under a construction contract with the General Services Administration (GSA). On July 20, 1992, respondent, GSA, moved to dismiss the appeal for lack of jurisdiction on the ground that the claim was not properly certified. We grant the motion. Background Thermodyn was awarded Contract No. GS-07P-91-HUC-0080 for facility improvements at the Columbia/Laredo Border Station in Texas. Thermodyn subcontracted with Gallegos Paving, Inc. for performance of the paving work on the project. In a letter to the contracting officer, dated March 19, 1992, Thermodyn, acting on behalf of Gallegos, requested that a change order be issued due to "latent conditions [in the soil on- site] which differ from those conditions which are represented in the contract documents." Respondent's Motion to Dismiss for Lack of Jurisdiction, Exhibit 1. The change order was requested to "reflect the additional cost and performance time which will be required by additional earthwork and laboratory work plus general contractor construction costs and mark ups." Id. Attached was a copy of a letter from Gallegos to Thermodyn providing a breakdown of the costs, amounting to $101,945.20, for which the change order was requested. Id. Neither letter contained a certification of the claim. By letter dated April 20, 1992, the contracting officer responded to Thermodyn's request. Motion to Dismiss, Exhibit 2. This letter took the position that it was the responsibility of the contractor to "ascertain the character and quality of surface materials from an inspection of the site and from exploratory work done by the Government." Id. The contracting officer stated further that the subcontractor, Gallegos, had actual knowledge of the soil conditions from its work on Phase 1 of the same project, making any claim for an unforeseen condition invalid. Id. The contracting officer thus denied Thermodyn's claim. Thermodyn wrote another letter on April 27, 1992, asking that the contracting officer reconsider her negative reply to the request for an equitable adjustment. Again, no certification was included with the letter. Motion to Dismiss, Exhibit 3. In a letter dated May 6, 1992, the contracting officer rejected the claim and informed appellant that this constituted her final decision on the matter. Motion to Dismiss, Exhibit 4. On June 25, 1992, Thermodyn filed a notice of appeal at the Board. Attached to this notice was a certification by subcontractor's vice president. The certification gave a break- down of the $101,945.20 claimed for equitable adjustment and stated: 1) The claim is made in good faith. 2) The data provided is accurate and truly reflects the quantities and amounts for which we believe the government is liable. Respondent filed a motion to dismiss for lack of jurisdiction on July 20, 1992. Discussion Respondent's motion raises two jurisdictional flaws in Thermodyn's appeal, both relating to the lack of a proper certification of the claim. First, respondent points out that the certification submitted by the subcontractor, Gallegos, is ineffective because the Contract Disputes Act of 1978 (CDA) requires that certification of claims over $50,000 be made by the prime contractor. Since no certification has been executed by appellant, the Board has no jurisdiction to hear the appeal. Second, respondent argues that even if certification could be made by a subcontractor, the certification provided by Gallegos is defective because it omits language required by the CDA. For claims of more than $50,000, the CDA requires that the contractor must certify that the claim is made in good faith, that the supporting data is accurate and complete to the best of its knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable. 41 U.S.C. 605(c)(1) (1988). The Act defines the term "contractor" to mean "a party to a Government contract other than the Government." Id., 601(4). Ordinarily, a subcontractor does not fall within this definition of "contractor" because it is not in privity with the Government. See Johnson Controls, Inc. v. United States, 713 F.2d 1541 (Fed. Cir. 1983). Because of this, this Board, and others, have held that a subcontractor's certification of a claim is not sufficient to establish jurisdiction to entertain the appeal. William F. Klingensmith, Inc., GSBCA 5506, et al., 83-2 BCA 16,852; Harrington Associates, Inc., GSBCA 6795, 82-2 BCA 16,103; see also Bergen Expo Systems, ASBCA 40022, 90-2 BCA 22,815; Triax Co., ASBCA 31974, 88-3 BCA 21,174; Regan/Nager Construction Co., PSBCA 1070, 85-1 BCA 17,778, at 88,792.[foot #] 1 In the absence of a properly certified claim presented to the contracting officer for decision, the Board has no jurisdiction to hear or rule on appellant's claim. W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338 (Fed. Cir. 1983); Harrington, 82-2 BCA at 79,944 (citing Paul E. Lehman, Inc. v. United States, 230 Ct. Cl. 11, 16, 673 F.2d 352, 356 (1982)). We must, therefore, dismiss this appeal for lack of jurisdiction. Having found that a subcontractor cannot certify a claim, we need not address the issue of whether the language ----------- FOOTNOTE BEGINS --------- [foot #] 1 Under a longstanding tradition in Government contract litigation, subcontractors have had to rely on the prime contractor to assert, or sponsor, their claims against the Government. Harrington, 82-2 BCA at 79,944. The legislative __________ history of the CDA makes clear that Congress intended to preclude subcontractors from bringing their claims directly under the Act, and expected that the existing sponsorship system would be retained. Santa Fe Engineers, Inc. v. United States, 230 Ct. Cl. ----------- FOOTNOTE BEGINS --------- 512, 517 n.11, 677 F.2d 876, 879 n.11 (1982); see also Clean _________ _____ Giant, Inc., 19 Cl. Ct. 390, 392-93 (1990) (citing S. Rep. No. ___________ 1118, 95th Cong. 2d Sess. 16, reprinted in 1978 U.S. Code Cong. & _____________ Ad. News 5235, 5250) ("Senate Report discusses the need for a single point of contact with the contracting officer in order to highlight the risk of allowing direct claims by subcontractors."). ----------- FOOTNOTE ENDS ----------- employed by Gallegos in its "certification" was sufficient under the Act. Decision Respondent's motion to dismiss for lack of jurisdiction is GRANTED. ______________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ _______________________________ DONALD W. DEVINE EDWIN B. NEILL Board Judge Board Judge