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Dai Global, LLC v. Administrator of United States Agency for International Development

United States Court of Appeals, Federal Circuit

December 27, 2019

DAI GLOBAL, LLC, FKA DEVELOPMENT ALTERNATIVES, INC., Appellant
v.
ADMINISTRATOR OF THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, Appellee

          Appeal from the Civilian Board of Contract Appeals in Nos. 5942, 5943, 5944, 5945, 5946, Administrative Judge Jonathan D. Zischkau, Administrative Judge Catherine B. Hyatt, Administrative Judge Jeri Kaylene Somers.

          Jonathan David Shaffer, Smith, Pachter, McWhorter, PLC, Vienna, VA, argued for appellant. Also represented by Armani Vadiee; Todd Matthew Garland, Zachary David Prince, Tysons Corner, VA.

          Geoffrey Martin Long, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for appellee. Also represented by Joseph H. Hunt, Robert Edward Kirschman, Jr., Patricia M. McCarthy.

          Before Moore, Schall, and Taranto, Circuit Judges.

          MOORE, CIRCUIT JUDGE

         DAI Global, LLC (DAI), formerly known as Development Alternatives, Inc., appeals a decision by the Civilian Board of Contract Appeals (Board) dismissing DAI's five appeals for lack of jurisdiction. See Developmental Alts., Inc. v. Agency for Int'l Dev., CBCA No. 5942, CBCA 5943, CBCA 5944, CBCA 5945, CBCA 5946, 18-1 BCA ¶ 37147. Because the Board has jurisdiction to consider DAI's appeals, we reverse and remand.

         Background

         From 2006 to 2010, the United States Agency for International Development (USAID) awarded DAI five contracts for developmental services in Afghanistan. DAI subcontracted with a private security company, ERSM (Afghanistan) Limited, d/b/a Edinburgh International (EI). EI employed over 1, 000 individuals to provide DAI with security services. On April 1, 2011, Afghanistan imposed a nearly $2 million fine on EI based on the size and composition of EI's private security workforce. EI paid the fine and allocated a portion of the expense to each of DAI's five contracts.

         On May 10, 2017, DAI submitted a cover letter and EI's five claims to USAID, seeking reimbursement for the fine. DAI's cover letter characterized itself as a certification. Along with each claim, DAI also included EI's certification stating that the claim was made in good faith. On July 10, 2017, USAID's contracting officer sent DAI a letter stating that she would provide a decision on the claims by August 24, 2017. On July 19, 2017, 70 days after DAI submitted its claims, the contracting officer sent a second letter informing DAI that the submission did not contain a contractor certification.

         On November 20, 2017, DAI filed five notices of appeal with the Board. The Board dismissed DAI's claims on September 27, 2018, for lack of jurisdiction based on DAI's failure to certify the claims. The Board stated that DAI's May 10, 2017 certification bears no resemblance to the required statutory language. The Board also stated that only technical errors are correctable, and that DAI made its certification with reckless disregard for the certification requirements. It concluded that nontechnical mistakes in the certification and DAI's recklessness rendered DAI's purported certification unsalvageable. DAI appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(10).

         Discussion

         We review a contract board's decision on a question of law de novo. Agility Logistics Servs. Co. KSC v. Mattis, 887 F.3d 1143, 1148 (Fed. Cir. 2018). Whether a contract board has jurisdiction over an appeal is such a question. Id.

         A government contractor seeking payment on a government contract must submit a claim to the contracting officer. 41 U.S.C. § 7103(a)(1). When the claim is for more than $100, 000, an ...


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