In 1901, in rural County Galway, Ireland, my Irish-speaking great-grandparents made their mark (“+”) on the decennial census taken that year. Whether they did so from a lack of literacy, or simply resented the census taker, I will never know. Whatever their reasons, my great-grandparents’ marks were accepted by the (then) British government because there was sufficient contextual evidence (i.e., an annotation by the census taker) to verify that my great-grandparents authored the marks and intended to be bound by them. This arrangement apparently worked for everyone involved, as it was repeated in 1911. Late last month, over 109 years later, the Armed Services Board of Contract Appeals (“ASBCA”), in Kamaludin Slyman CSC, ASBCA Nos. 62006, et al., Sept. 25, 2020, 2020 ASBCA LEXIS 213 at *1, adopted this approach when considering whether a contract claim was properly certified.
Contract Disputes Act Claim Certifications
The Contracting Disputes Act (“CDA”) requires contractors to certify government contracts claims of more than $100,000. This certification is required to be “executed by an individual authorized to bind the contractor with respect to the claim” and must state that:
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- the claim is made in good faith;
- the supporting data are accurate and complete to the best of the contractor’s knowledge and belief;
- the amount requested accurately reflects the contract adjustment for which the contractor believes the federal government is liable; and
- the certifier is authorized to certify the claim on behalf of the contractor.
A properly executed CDA certification must be “signed.” The objective of requiring a signature is to deter fraud, since the signature can ostensibly be used to identify the person making a false claim, and to hold that claimant accountable. An unsigned certification is not merely defective, but could deprive boards of contract appeals and the Court of Federal Claims of jurisdiction to hear appeals of a contracting officer’s claim denial. Simply put, an unsigned certification is no certification at all.
Traditionally, an ink signature was required for proper claim certification. While the ASBCA later came to accept certain digital signatures as providing proper certification, the ASBCA expressly rejected typewritten names due to the impossibility of verifying that the purported signatory actually typed the signature and intended to be bound by it. In Kamaludin Slyman, however, the ASBCA has held that it will accept as a proper CDA claim certification any “mark purporting to act as a signature that may be traced back to the individual making it . . . whether it be signed in ink, through a digital signature application, or be a typed name.”
In that case, the contractor forwarded its $155,000 claim letter to the contracting officer via an e-mail, which contained the claim certification language followed with the closing “Sincerely, Kamaludin Slyman”—simply the author’s typewritten name. When the contractor appealed the deemed denial of its claim to the ASBCA, the government moved to dismiss the appeal on grounds that the certification was not signed, meaning the claim was not certified. Since the CDA does not define the term “signature,” the ASBCA examined whether the signature typed into the contractor’s e-mail met the Federal Acquisition Regulation (“FAR”) definition of a “signature” that would certify the claims, and concluded that it did.
FAR 2.101 defines “signature” as the discrete, verifiable symbol—including electronic symbols—of an individual which, when affixed to a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. The ASBCA found that the typed name of the claimant in the e-mail satisfied the “discrete” requirement since the typed name was a “separate and distinct” symbol. The ASBCA found the signature to be “verifiable” since the document in which it appears came from the sender’s e-mail address. Since the e-mail address could be linked to the certifier in a number of ways—including the government’s established practice of communicating with the contractor through that very same e-mail address—the signature was verifiable. Finally, both general practice and the Electronic Signatures in Global and National Commerce Act recognize that even a typed name affixed at the end of a document conveys an intent to authenticate. The ASBCA held that the claim was properly certified and denied the government’s motion to dismiss.
Takeaways
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- Provide a traditionally recognized signature whenever possible. Though Kamaludin Slyman CSC might bail you out in a pinch, the decision does not represent a settled area of law. Four of the ASBCA judges wrote separate concurrences in which they agreed that the appeal should not be dismissed, but argued that the typed signature was a defective certification that could be corrected. Each of these judges argued that the majority opinion improperly contradicted recent, correctly decided opinions of the ASBCA and the Federal Circuit.
- If you must submit a typed signature in an e-mail, supplement it with a traditional ink signature. Reduce risk by supplementing a typed e-mail signature with an ink or acceptable digital signature as soon as possible. Remember that a proper certification is jurisdictional and could affect the timeliness of a claim.
- Stay informed. Given the ASBCA’s far-from-unanimous view of this decision, we will monitor future decisions on this issue and advise of significant developments.
