By Government Contracts Editorial Staff
A ruling by the Senior Deciding Group overruled Armed Services Board of Contract Appeals’ precedent that a typed signature block does not meet the requirement for a signature to certify claims pursuant to the Contract Disputes Act because, as long as a mark purporting to act as a signature may be traced back to the individual making it, the mark qualifies as a signature for purposes of the CDA, whether signed in ink, through a digital signature application, or as a typed name. The contractor submitted a payment demand for $155,500, alleging the government breached a heavy equipment lease by moving equipment and keeping it after the lease expired. The payment demand letter contained a handwritten signature from the contractor’s president. Nearly six years later, the contractor sent an email referencing its prior demand letter. The email contained an electronic reproduction of the president’s signature. The government moved to dismiss the consolidated appeals for the contractor’s failure to submit a claim certified with a proper signature as required by the CDA (41 USC 7103(b)). Given the continued increase in the use of digital conventions for transacting business, the board decided to revisit its precedent on the issue (see, e.g., NileCo General Contracting LLC, 17-1 BCA ¶36,862). Because the precedent was directly on point, any change of this rule of law had to be accomplished through the Senior Deciding Group, unless it was reversed by the Court of Appeals for the Federal Circuit (SWR, Inc., 15-1 BCA ¶35,832).
“Discrete” and “Verifiable”. The Federal Acquisition Regulation defines a “[s]ignature or “signed” as “the discrete, verifiable symbol of an individual that, when affixed to a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. This includes electronic symbols” (FAR 2.101). In URS Federal Services, Inc. (19-1 BCA ¶37,448), the board held “verifiable” means that a mark can be tied to an individual. Considering that the policy goal for requiring certified signatures is to deter fraud, the Senior Deciding Group concluded that a signature which is verifiable in the sense that it permits a determination of which individual is responsible for the claim satisfies this anti-fraud policy objective. Here, because the typed name at the end of the contractor’s email was a discrete verifiable mark made with intent to authenticate, it constituted a signature sufficient for the CDA’s certification purposes. Importantly, the name came from an email correspondence that demonstrated the document came from the sender’s email address, and the board was satisfied that the email address was linked to the certifier. Several of the judges concurring in the result found the email was not a valid CDA certification but was a defective certification that could be corrected. (Kamaludin Slyman CSC, ASBCA, ¶96,127)
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