Sponsored Subcontractor Pass-Through Claim Addressed
While a subcontractor claim against the government was initially submitted in the sub’s own name, there was adequate evidence the government was aware at all times this was a pass-through claim sponsored by the prime contractor. The certification was a curable defect.
(Construction Claims Advisor: Vol. 24, Iss. 11, June 15, 2026)
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Armed Services Board of Contract Appeals
Appeal of The Haskell Company
Case no.: ASBCA No. 64380
Date filed: May 5, 2026
Overview
The Armed Services Board of Contract Appeals has ruled the government had been on notice, at all pertinent times, that the prime contractor was sponsoring a pass-through claim on behalf of a subcontractor. While the language of the sponsoring contractor's certification had been insufficient, this was a curable defect.
Background
The US Navy awarded a contract to The Haskell Company for design and construction services. Haskell awarded a subcontract to ENFRA MCC LLC for the design and construction of mechanical systems. Extensive subsequent correspondence indicated ENFRA believed the Navy had caused the subcontractor to incur increased costs. ENFRA sought Haskell's assistance with a "pass-through claim" against the Navy.
ENFRA submitted a claim to the Navy contracting officer on February 3, 2025 and labeled it as a "pass-through sponsored claim" under the Haskell contract. ENFRA certified the accuracy and completeness of the claim with the language required by the Contract Disputes Act, including a certification signed by an officer of Haskell. It read in part as follows:
"We do not have access to their books and records and therefore, cannot make any statement with respect to the amount of their Claim. However, we have no reason to believe that their cost figures and delay estimates are incorrect."
The contracting officer responded that ENFRA could not submit a pass-through claim to the Navy; Haskell had to submit the claim. Haskell's general counsel then sent the Navy a letter, dated June 4, 2025, stating it was sponsoring the pass-through claim. Haskell asked the Navy to either consider the claim or issue a final decision denying the claim. The contracting officer denied the claim in its entirety. Counsel for ENFRA then submitted a notice of appeal to the Armed Services Board of Contract Appeals, copying Haskell on the notice.
The Navy moved to dismiss the claim for lack of jurisdiction, arguing the prime contractor had to expressly sponsor a subcontractor pass-through claim at the time of claim submittal and at the time of appeal of claim denial. Haskell had failed to do so. Further, the Navy contended the claim had never been properly certified.
The Ruling
The board said the Navy had been aware, at all pertinent times, that this was a sponsored subcontractor pass-through claim submitted under the Haskell prime contract. While the initial claim of February 3 was submitted in ENFRA's name, it was labeled as a sponsored pass-through claim and included a certification from Haskell. When the contracting officer sought clarification, Haskell's letter of June 4 squarely stated this was a sponsored pass-through claim. When ENFRA appealed the claim denial to the board, it copied Haskell on the notice of appeal.
"Haskell was aware of ENFRA's claim a year prior to its filing, provided a certification to accompany the February 3, 2025 claim, specifically requested that the Navy consider ENFRA's claim as a 'properly submitted pass-through claim sponsored by Haskell,' and was copied on the notice of appeal. There is abundant evidence of Haskell's sponsorship of the claim and appeal."
Regarding the certification, the board acknowledged Haskell's language had fallen short. The federal circuit has ruled that a prime contractor need not certify the accuracy of the sponsored subcontractor claim; however, the prime must state it believes there is "good ground for the claim." Haskell stated that it had no reason to believe the dollar amounts were incorrect. This language was insufficient.
The board said the complete omission of a certification is not a curable defect. However, a flawed certification can be corrected—the subcontractor had properly certified the underlying claim and the language of Haskell's sponsorship certification could be changed. The board would then have jurisdiction over the appeal. The Navy's motion to dismiss was denied.
Conclusion
This sponsored claim was inartfully structured, starting with the initial submission to the contracting officer in the subcontractor's own name. The board was left with the task of assembling the scattered pieces to construct a valid pass-through claim.
Practical Takeaway
While requirements for "magic language" are frowned upon in contemporary legal practice, there are exceptions. Erring on the side of caution, a contractor's certification of its claim should track the language of the Contract Disputes Act verbatim. And, the federal circuit has clearly stated the language for a sponsoring prime contractor's certification of its subcontractor's claim.
Participants:
For Haskell: Brendan R. Geraghty, Greenville, South Carolina
For the Navy: Allison M. McDade, Washington, D.C.
Before: Administrative Judges Arnett, Prouty and D'Alessandris
Opinion by: Administrative Judge Arnett
Outcome: Government's motion to dismiss for lack of jurisdiction dismissed.