The Contract Disputes Act of 1978 (“CDA”) contains some simple requirements for claims over $100,000, including certification. However, to this day, contractors have consistently violated certification requirements, and as a result, boards and courts have dismissed their claims. This is a big mistake that’s easy to avoid. The error occurred most recently in NileCo General Contracting, LLC, ASBCA No. 60912, September 22, 2017. It seems as if a tech-crazed world sometimes refuses to use the lowest-tech machine of all, the ballpoint pen, because the pen is electronically inconvenient. Government contractors must be low-tech when signing claims.
The CDA states that each claim over $100,000 must be certified to indicate that:
1. The claim is made in good faith;
2. The supporting data is accurate and complete to the best of the contractor’s knowledge;
3. The amount requested accurately reflects the contract adjustment for which the contractor believes the government is responsible; Y
4. The certifier is authorized to certify the claim on behalf of the contractor.
41 USC § 7103(b). These particular requirements are included in the Federal Acquisition Regulation (“FAR”) 33.207(c) and the dispute clause in each contract. The FAR also establishes that the certification may be granted by any person duly authorized to bind the contractor. ID. Although the Contract Disputes Act does not define the term “execute,” Contract Appeals Boards have consistently held for at least 10 years that in order to “execute a Contract Disputes Act certification, there must be a signature of a certifier “. “Signature” is defined in the FAR as an individual’s discreet and verifiable symbol that, when placed on a writing with the individual’s knowledge and consent, indicates a present intent to authenticate the writing. This includes electronic symbols.
FAR 2,101
Failure to sign the certification as required strips the Court of Federal Claims or the Boards of Contract Appeals of jurisdiction to hear the claim and is No a correctable defect that can be corrected to restore jurisdiction.
Here are four cases in the last ten years (the last of which cites a case from 1993), where a “pen and ink” signature would have saved the contractor from having his claim dismissed by the Board:
(1) NileCo General Contracting, LLC, ASBCA No. 60912, September 22, 2017. The contractor simply used a typed signature block (“Anwar Ahmed Director”). The Board dismissed the claim despite the contractor’s assertion that there had been a course of negotiation allowing the use of the typewritten signature block. The Board noted that the parties could not waive the jurisdictional requirement of a certification executed through a course of negotiation and could not confer jurisdiction by agreement of the parties.
(two) ABS development. corporation, ASBCA No 60022 et al., Nov. 17, 2016. For some of the claims on appeal, the contractor used multiple letters of a name (presumably electronically typed) purporting to be signatures. “A typed name, even one typed in Lucida Handwriting, cannot be authenticated and is therefore not a signature. [also] The typed “//signed//” is not a signature because it cannot be authenticated. Anyone can write a person’s name, there is no way of knowing who did it from the writing itself.” These documents were discarded as unsigned certifications.
(3) tokyo Company, ASBCA No. 59059, April 23, 2014. The claim was stamped “TOKYO COMPANY For Services and General Contracting Baghdad-Iraq Build 23 St. Al-Karadaa” above the typed words “General Manager of Company BENIAMEN MONADHIL.” The Board held that a stamp with the name of the company, explaining what it does, and its address and the typed but unsigned name of the general manager “are not particularized and do not specifically identify the person executing the certification.” Again, the lawsuit was dismissed.
(4) Teknocraft, Inc.ASBCA No. 55438, April 3, 2008. The company marked its certification as follows:
//signed//
Sam Kumar
President
Technocraft, Inc.
The Board stated that the annotation “//signed//” in the signature block was equivalent to the nullification of a signature and was a fatal flaw. “The nonspecific computer-generated notation is not a discrete verifiable symbol that can be authenticated. As we discussed in Hawaii Cyberspace, citing Youngdale & Sons Const. Cov. USA, 27 federal Cl. 516, 561, n. 87 (1993), the need to sign the certification is to hold the signer responsible for any falsehood contained therein. Without a signature, the would-be certifier could easily disavow the certification because “//signed//” cannot be authenticated. The correct execution of the certification is fundamental, going to the essence of the requirement.”
Food to go: Using the “high-tech” method of signing a CDA certification or statement can be a big mistake. Use the “low-tech” method to sign them: with a pen, not a computer. Don’t write “signed” or anything else: insert a real, live signature of an authorized person to bind your company and avoid this easy pitfall. Sign both your claim letter and your certification the same way, with a pen. While it may be easier from an electronic point of view to use a typewritten signature, the risk is too great.
Additional Note: The Electronic Signatures in Global and Domestic Commerce Act (“E-SIGN”) does not require the government to accept electronic signatures. The Act states that a government agency does not need to accept electronic signatures with respect to a contract. See Excel Building. and development corporation, B-401955, December 23, 2009, 2009 CPD ¶ 262, quote 15 USC§ 7001(b)(2), FAR 4.502. The Office of Management and Budget (“OMB”) has issued guidance to federal agencies explaining that the Act does not require contracting parties, whether the government or the private sector, to use or accept electronic signatures and records. See the Guide on the Implementation of Electronic Signatures in Global and National Trade Law, Memorandum for the Heads of Departments and Agencies, M-00-15, OGP, September 25, 2000.