ASBCA: No Valid Claim Certification Where “Signature” Was Typewritten

A contractor did not file a proper certified claim because the purported “signature” on the mandatory certification was typewritten in Lucinda Handwriting font.

A recent decision of the Armed Services Board of Contract Appeals highlights the importance of providing a fully-compliant certification in connection with all claims over $100,000–which includes, according to the ASBCA, the requirement for a verifiable signature.

The ASBCA’s decision in ABS Development Corporation, ASBCA Nos. 60022 et al. (2016) involved a contract between the government and ABS Development Corporation, Inc. for construction work at a shipyard in Haifa, Israel.  During the course of performance, ABS presented seven claims to the Contracting Officer, five of which are at issue here.

In each of the five claims in question, ABS sought compensation of more than $100,000.  Each of the five claims contained a certification using the correct language from the Contract Disputes Act and FAR 52.233-1.  The “Name and Signature” line of each claim was written “in what appears to be Times New Roman font.”  Above the “Name and Signature” line of each claim the name “Yossi Carmely” was typed “in Lucinda Handwriting font, or something similar.”  Yossi Carmely was listed on the certifications as a Project Manager.

The government did not act on these claims.  A few months after the claims were filed, ABS appealed to the ASBCA, treating the government’s lack of response as “deemed denials” of the claims.

The government moved to dismiss the appeals for lack of jurisdiction.  The government argued that the certifications “were not signed by anyone, because electronically typed ‘signatures’ of Yossi Carmely are not signatures at all.”

The ASBCA noted that “[a] claim of more than $100,000 must be accompanied b y a signed certification by an individual authorized to bind the contractor with respect to the claim . . ..”  Further, “[t]he Board cannot entertain an appeal involving a claim of more than $100,000 unless the claim was the subject of a signed certification.”  An unsigned certification “is a defect that cannot be corrected.”

The Board explained that a signature “is a discrete, verifiable symbol that is sufficiently distinguishable to authenticate that the certification was issued with the purported author’s knowledge and consent or to establish his intent to certify, and therefore, cannot be easily disavowed by the purported author.”  The ASBCA continued:

Here, we are not confronted with an issue of “electronic signatures”; rather, we are confronted with several typewritings of a name (presumably typewritten by electronic means), purporting to be signatures.  However, a typewritten name, even one typewritten in Lucinda Handwriting font, cannot be authenticated, and therefore, it is not a signature.  That is, anyone can type a person’s name; there is no way to tell who did so from the typewriting itself.

The ASBCA granted the government’s motion to dismiss for lack of jurisdiction.

The FAR’s claim certification requirement appears to be simple and straightforward, but the ASBCA’s case law (and that of other Boards) is littered with examples of cases dismissed because the contractor omitted the certification or didn’t get it right.  As the ABS Development Corporation case demonstrates, even in our electronic age, a purely typewritten signature doesn’t suffice, notwithstanding the font selected.

One final, and rather ironic, note: the last page of the ASBCA’s decision contains a certification from the Board’s Recorder, attesting that the decision is a true copy.  The Recorder’s signature line is blank.