Carothers & Carothers Construction Company, Inc. Appellant, v. the United States, Appellee, 884 F.2d 1399 (Fed. Cir. 1989)

DECISION

Carothers and Carothers Construction Company, Inc. (Carothers) appeals the decision of the Corps of Engineers Board of Contract Appeals (board), ENG BCA No. 4739, dismissing Carothers' claim of June 1980 for lack of jurisdiction. We affirm.

Carothers also appeals the board's decision, ENG BCA No. 4015, denying Carothers' claim for an equitable adjustment to a construction contract. At the unopposed request of Carothers, we transfer that appeal to the U.S. Claims Court.

OPINION

This court affirms the decision of the board dismissing Carothers' June 1980 claim for lack of jurisdiction. We have found that decision to be neither unsupported by substantial evidence nor fraudulent, arbitrary, capricious or so grossly erroneous as to necessarily imply bad faith. 41 U.S.C. § 609(b) (1982); See Erickson Air Crane Co. v. United States, 731 F.2d 810, 814 (Fed. Cir. 1984).

The record shows that Carothers explicitly elected to proceed under the Contract Disputes Act of 1978 but failed to certify its claim in accordance with the procedural requirements of that Act. We have considered Carothers' argument that its election was not "conscious and unwavering" and have found such argument to be unpersuasive.

As claim certification is an absolute requirement for jurisdictional purposes, the board's dismissal of Carothers' appeal for lack of jurisdiction was correct as a matter of law. See Schlosser v. United States, 705 F.2d 1336, 1339 (Fed. Cir. 1983).