PETITION DENIED: October 10, 1997 GSBCA 14281-TD KEYDATA SYSTEMS, INC., Petitioner, v. DEPARTMENT OF THE TREASURY, Respondent. Thomas S. Dann of Hewes, Gelband, Lambert & Dann, Washington, DC, counsel for Petitioner. Lori R. Larson, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and WILLIAMS. DANIELS, Board Judge. The Department of the Treasury, respondent, moves us to dismiss a petition filed by Keydata Systems, Inc., which asks the Board to direct an agency contracting officer to issue a decision on two claims made by Keydata. The claims arose under a contract between the parties for the provision of technical support services for the editing, data transcription, and verification of the agency's Currency Transaction Report. For the reasons explained below, we grant the motion in part and deny the petition. Background The contract contains (or includes by reference) Federal Acquisition Regulation (FAR) clause 52.222-43, "Fair Labor Standards Act and Service Contract Act -- Price Adjustment (Multiple Year and Option Contracts) (May 1989)." This clause provides for the adjustment of the contract price to reflect changes the contractor makes in applicable wages and fringe benefits, consistent with wage determinations issued by the Department of Labor. On October 12, 1995, Keydata submitted to the contracting officer what it labeled a "claim for cost reimbursement and rate adjustment" pursuant to a contract modification and the provisions of this clause. The contractor said that it "claims reimbursement of the following incurred costs: . . . $407,354.57." Keydata said that "[e]ffective February 1, 1995, [it had] effected all retroactive wage and benefit increases required by [its] adoption of" two Department of Labor wage determinations. Petition, Exhibit A at 1 (unnumbered). Included with this document was an invoice, dated October 13, 1995, in the same amount, which bears the following certification: "I certify that the above services have been performed in accordance with the contract, and that personnel, hours and/or other costs are correct and have not been previously billed." This invoice is signed by an individual who is identified as Keydata's vice president of finance. Id. at 8 (unnumbered). On December 5, 1995, Keydata sent to the contracting officer a similar "claim," in the amount of $23,839.99. This letter referenced different versions of the wage determinations. Included with it was an invoice, dated December 5, 1995, which bears the same certification as the one contained in the October correspondence. This invoice is signed by an individual who is identified as Keydata's vice president - contracts. Petition, Exhibit B. On February 7, 1996, and again on March 21 of that year, an agency contracting officer reported to Keydata that the October "claim" was being evaluated. Petition, Exhibits C, D. In April, Keydata's president complained about the delay. Referencing the FAR, she asserted that within sixty days of receipt of each claim, the contracting officer should have issued a decision or notified the contractor when a decision would be forthcoming. See 48 CFR 33.211(c)(1), (2) (1995). Again referencing the FAR, 48 CFR 33.211(e), (f), she threatened that if a decision was not issued promptly, she would appeal to this Board from the contracting officer's deemed denials of the two "claims." Id., Exhibit E. On May 17, 1996, the contracting officer wrote to the contractor: I have determined that the IRS is unable to issue a "Final Decision of the Contracting Officer" at this time because: 1. Keydata Systems, Incorporated failed to submit a certified claim request in the amount of $431,194.56 in accordance with FAR 33.206 and 207 and; 2. Keydata Systems, Incorporated is hereby informed that an investigation has been initiated in accordance with 31 U.S.C. 3729 False Claims Amendment Act of 1986. The amount of the false claim exceeds the amount claimed under FAR 52.222-43. This matter will be revisited on completion of this investigation. Petition, Exhibit F. The Government says that it is continuing to investigate the validity of Keydata's payment request. Respondent's Motion to Dismiss at 4. Discussion In docketing this case, the Board asked the parties to address two questions which are critical to the issue of our jurisdiction over the petition: (1) Are the letters that Keydata sent to the contracting officer in October and December of 1995 actually "claims," as that term is used in the Contract Disputes Act of 1978, 41 U.S.C.  601-613 (1994)? (2) Was the October claim (if it was a "claim") "certified," as that term is used in the Act? The agency then filed a motion to dismiss, contending that we may not consider the petition because both questions must be answered in the negative. Keydata opposes this request. The Contract Disputes Act grants agency boards of contract appeals jurisdiction over appeals from contracting officers' decisions on claims. Case, Inc. v. United States, 88 F.3d 1004, 1008-09 (Fed. Cir. 1996); James M. Ellett Construction Co. v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996); see 41 U.S.C.  605(c), 607(d). A contractor may petition a board to direct a contracting officer to issue a decision in a specified period of time. 41 U.S.C.  605(c)(4). We construe the statute to limit our jurisdiction over petitions in a similar way to the one in which it restricts our authority over appeals: a claim is a prerequisite to any action by us. As interpreted by the Court of Appeals for the Federal Circuit, the Act says that a contractor's request for money must meet at least three requirements to qualify as a "claim": it must be (1) a written demand (2) seeking, as a matter of right, (3) the payment of money in a sum certain. These are the only three requirements that a "non-routine" request must meet to be considered a "claim." "A routine request for payment, on the other hand, must also be 'in dispute' when submitted to meet the definition of a 'claim.'" Ellett, 93 F.3d at 1542; see also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 1995) (en banc). Keydata's October and December 1995 letters to the contracting officer clearly comply with the three requirements that all requests must meet in order to qualify as claims. There is no indication in the record, however, that the matters addressed in either of the letters were "in dispute" when submitted; thus, neither of the letters constituted a "claim" if the request made in them was a "routine" request for payment. The question we must resolve here, consequently, is whether the request was routine or non-routine. The Court has given us some guidance for resolving this issue: "A routine request for payment . . . is made under the contract, not outside it. For example, a voucher or invoice is submitted for work done or equipment delivered by the contractor in accordance with the expected or scheduled progression of contract performance." Reflectone, 60 F.3d at 1577. The Court has also explained that a request for equitable adjustment "is anything but a 'routine request for payment.' It is a remedy payable only when unforeseen or unintended circumstances, such as government modification of the contract, differing site conditions, defective or late-delivered government property or issuance of a stop work order, cause an increase in contract performance costs." Id. Dictionary definitions may be helpful as well. The word "routine" is defined by use of the words "regular," "habitual," "repetitive," "hum-drum," and "commonplace." Webster's Third New International Dictionary 1981 (1986 ed.). Keydata's letters do not fit neatly into either the "routine" or "non-routine" category, as those classifications have been illustrated by the Court. The requests are "routine" in that they are (or at least are supposed to be) demands that the agency make payments which are the automatic consequence, dictated by the contract, of the Department of Labor's issuance of wage determinations; the contract envisioned that such determinations would be made during its multi-year life. Although Keydata characterizes the letters as requests for equitable adjustment, the cause of those requests is not like any of the examples of "unforeseen or unintended circumstances" that the Court listed in Reflectone. On the other hand, the demands for payment are "non-routine" in that they are priced outside "the expected or scheduled progression of contract performance." We conclude that even if a modification pursuant to a Department of Labor wage determination may generally be considered "routine" (a matter we do not decide here), Keydata's claims are non-routine in that they seek retroactive application of such determinations. This aspect of the claims makes inconceivable a conclusion that the demands pertain to work done "in accordance with the expected or scheduled progression of contract performance." Because Keydata's demands for payment are "non-routine," even though the matters raised in those demands were not in dispute when the letters were written, each of the letters is properly deemed a "claim" for purposes of the Contract Disputes Act. We have taken into consideration, in reaching this conclusion, the Court of Appeals' advice that a "claim" does "not ordinarily require a pre-existing dispute." Reflectone, 60 F.3d at 1583; see also id. at 1580-83. This does not end our adventure into the jurisdictional quagmire, however. For the Board to have jurisdiction over the petition for a contracting officer decision on the first claim, an additional hurdle must be passed. Because the claim is for more than $100,000, it is subject to action by the contracting officer only if "the contractor [certifies] that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor." 41 U.S.C.  605(c)(1). Prior to the 1992 amendments to the Contract Disputes Act, a board of contract appeals had no jurisdiction to hear a case involving a claim if the claim was required to be so certified and had not been. United States v. Grumman Aerospace Corp., 927 F.2d 575, 579 (Fed. Cir.), cert. denied, 502 U.S. 919 (1991). The amendments provide that "[a] defect in the certification of a claim shall not deprive . . . an agency board of contract appeals of jurisdiction over that claim. Prior to the entry of a . . . decision by [a board], the . . . board shall require a defective certification to be corrected." Pub. L. No. 102-572,  907(a)(1), 106 Stat. 4506, 4518 (1992); 41 U.S.C.  605(c)(6). Congress explained that in changing the law, it meant to retain the certification requirement, so as "to insure that complete, clear, and honest claims are presented to Federal contracting officers," but to eliminate jurisdictional questions resulting from "technically defective" certifications. H.R. Rep. No. 102-1006, 102d Cong., 2d Sess., at 28 (1992), reprinted in 1992 U.S.C.C.A.N. 3921, 3937. Toward that end, "a defect in the certification, discovered after a claim is in litigation, may be cured by the contractor to avoid repetition of the entire administrative claims process and waste of judicial or board resources." Id. The Congressional committee report states: The term "technically defective" is intended to cover the full range of defects found by the courts that do not involve a substantive defect, such as bad faith, fraud, or reckless and intentional disregard of the statutory certification requirements. Examples of "technically defective" certifications made curable by this amendment include certification with each document submitted as part of the claim when all claim documentation is not submitted simultaneously, missing certifications when two or more claims not requiring certification are deemed by the court or board to be a larger claim requiring certification, and certification by the wrong or incorrect representative or the contractor . . . . It is the Committee's belief that contractors whose certifications are defective as the result of innocent mistake or inadvertence should not be penalized where their claims are otherwise meritorious and a good faith effort appears to have been made to provide a responsive certification in the first instance, including recertifications filed in response to contracting officer inquiries after the initial claim was filed. Id. Keydata's vice president of finance made the following certification as to this claim: "I certify that the above services have been performed in accordance with the contract, and that personnel, hours and/or other costs are correct and have not been previously billed." This certification, as Keydata now admits, is not the one required by the Contract Disputes Act. However, in light of the 1992 amendments to the Act and Congress's explanation of how those amendments are to be implemented, we will decline jurisdiction over a case involving a claim in excess of $100,000 only if the claim was not certified at all, or if we find that the certification was made in bad faith, fraudulently, or with reckless or intentional disregard of the statutory certification requirements. SAE/Americon--Mid- Atlantic, Inc. v. General Services Administration, GSBCA 12294, 94-2 BCA  26,890, at 133,852; Hamza v. United States, 31 Fed. Cl. 315, 324 (1994); Eurostyle Inc., ASBCA 45934, 94-1 BCA  26,458, at 131,654 (1993) (as to no certification); Pevar Co. v. United States, 32 Fed. Cl. 822, 825 (1995); Production Corp., ASBCA 28053, 96-1 BCA  28,053 (1995) (as to insufficient certification). The question now before us is whether the certification submitted with the claim falls into one of these categories. Keydata's $407,354.57 claim is accompanied by a certification, so we must determine whether that certification is sufficient for us to retain jurisdiction over the portion of the case which involves that claim. The agency is not prepared to contend that the certification was made in bad faith, fraudulently, or in reckless disregard of the Act. One question remains: Was the certification made in negligent disregard of the Act? The certification addresses, at best, only one of the statute's requirements; in stating that the "personnel, hours and/or other costs are correct," it might be read as saying that the supporting data are accurate and complete. The certification is utterly bereft of even an allusion to any of the other prongs of the requirement. The defects in the certification are thus far more substantial than any of the examples of "technical" defects given in the Congressional committee report or in any other way in which we might stretch the meaning of the word "technical." Keydata showed by its correspondence that at least as early as April 1996, it had a close understanding of the regulations governing Government contract claim resolution. Those regulations contain the requirements for proper certification -- as the contracting officer told the company in the following month. Keydata was thus on notice well before it filed its petition as to the actions it had to take to perfect the claim. In response, the contractor took no action whatsoever. We find that this refusal to cure the substantial defects, in the face of knowledge of what was required and the contracting officer's pointed comment, and before litigation began, constitutes negligent disregard of the Contract Disputes Act requirement, not innocent mistake or inadvertence. Because Keydata has not made the certification required by the Act, or even a certification with a curable technical defect, insofar as the petition relates to the claim for $407,354.57, it is premised on a claim that was not certified for any Contract Disputes Act purpose. We cannot compel a contracting officer to issue a decision on such a claim. All that remains before us, consequently, is Keydata's petition that we direct the contracting officer to issue a decision on the claim for $23,839.99. This claim involves similar or identical issues to those involved in the much larger claim. (Indeed, it may be that the two claims should be considered, as the contracting officer believed, as pieces of a single matter.) To keep the tail from wagging the dog, we decline to direct the contracting officer to issue a decision on the smaller claim at this time. The contracting officer need not address the issues raised by Keydata until the contractor places a properly certified claim before her or indicates that it no longer seeks to pursue the larger claim. Decision The petition is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ __________________________ JOSEPH A. VERGILIO MARY ELLEN COSTER WILLIAMS Board Judge Board Judge