Despite technological advance, some (perhaps even you) still cling to the notion that a signature, written by a human hand, is the only official kind. In other words, if a person doesn’t personally affix her “John Hancock” in cursive script or some other creative form, then the document really isn’t signed. If this thought sounds familiar, I’m here to liberate you. You are no longer bound like a medieval prisoner to your tube filled with ink. You can use an electronic signature in your contract work with the U.S. Government, including certifications connected to claims submitted under the Contract Disputes Act.
The issue of an electronic signature recently took center stage in a case before the Armed Services Board of Contract Appeals: URS Federal Services, Inc., ASBCA No. 61443 (Oct. 3, 2019). There, a contractor submitted a claim for over $100,000, which FAR 52.233-1 requires to be certified and signed by a company official.
So, the contractor’s vice president affixed the following electronic signature to the contractor’s certification, which he created using PDF software installed on his office computer:
The Government argued that this electronic signature did not comply with the Contract Dispute Act’s certification requirements, largely because the Government couldn’t determine whether the signature was genuine on its face. More specifically, the Government argued that to be “verifiable” an electronic signature had to be authenticated with a “validated, trustworthy certificate underlying the digital signature.”
Because the Contract Disputes Act does not define “signature,” the ASBCA first looked to the FAR’s definition. There, the term is defined 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.” It also specifically includes “electronic symbols.” ASBCA also looked to the dictionary definition of “verifiable,” which means “capable of being verified” and “verify,” which means “establish the truth, accuracy or reality of.”
Using these definitions, the board rejected the Government’s position because it was not supported by either the FAR or the Contract Disputes Act. And more importantly, ASBCA was unwilling to deviate from what it already accepts as a verifiable signature: the good ol’ ink signature. Indeed, ASBCA reasoned that no ink signature allows a reader to know who executed it unless the reader intimately knows the certifier’s handwriting; and even that knowledge has its limits because the signature could be manipulated by tracing or photo-copying the signature. ASBCA made it clear that it would hew to its routine practice of accepting ink signatures and that digital signatures would not be burdened with demands not required by their handwritten counterparts.
In the end, ASBCA concluded that, as a matter of law, “if one can later establish that a mark is tied to an individual, it is verifiable”–a conclusion that complies with the open policy toward electronic signatures in the E-Sign Act.
Applying these legal principles, ASBCA held that the claim documents, which included the electronic signature above, originated from the signer’s email account. And the evidence indicated that the digital signature originated with the signer because the program–used to create the signature–required a password and credentials unique to him. For ASBCA, this evidence was enough to hold that the digital signature belonged to the purported signer and was verifiable.
This is an important decision because e-signatures will only become more prevalent, and there’s little reason to insist on the traditional handwritten signature in today’s commerce. But I will note that ASBCA’s decision here does not apply to typewritten signatures (i.e., /s/ John Doe). Elsewhere, we’ve discussed another case where ASBCA held that these signatures do not meet the Contract Disputes Act’s signature requirement for claim certifications.
Overall, this decision should also give contractors confidence that they can use digital signatures (but not typewritten signatures) in their transactions with the federal government. I can hear the chants already: “Unyoke yourselves fellow contractors from the tyrannical allure of your ballpoint (or gel) pens. Long live digital signatures!”