Form Matters: Contractor Loses $2M Claim Because Emailed Certification Was Not “Electronically or Digitally” Signed
By Oles Morrison on October 26, 2017 | Posted in Claims and Disputes
Most government contractors are well-aware that the road to preserving and pursuing a claim against the government is one where opportunities for contractors to waive or otherwise lose their right to assert valid claims abound. In a decision where form has once again prevailed over substance, the Armed Services Board of Contract Appeals (“the Board”) recently determined in Appeal of NileCo General Contacting LLC that a typewritten signature block in a company director’s email was not a sufficient signature to certify the contractor’s claim under the Contract Disputes Act (“CDA”).
In December 2011 the U.S. Army Corps of Engineers (”USACE”) awarded NileCo General Contracting LLC (“NileCo”) a contract to construct a dining facility and other structures at Manas International Airport in Kyrgyzstan. Two years later, the government suspended work, and directed NileCo to demobilize and quit the site. By July 2016, the government was still withholding payments. NileCo sent the contracting officer a $2,079,137.25 claim. The emailed claim included certification language required by the CDA, but the sender—the contractor’s director, Anwar Ahmed—included only his typewritten name and not an “electronic or digital signature.”
The government’s contracting officer acknowledged receiving NileCo’s email, advised that he needed additional time to prepare his final decision, and stated that the final decision would “be issued by November 20, 2016.” Soon thereafter, the government terminated NileCo’s contract for convenience. Having received no final decision by Nov. 20, 2016, NileCo filed its notice of appeal with the Board. The government sought to dismiss NileCo’s appeal because it contended that NileCo’s email did not constitute a valid claim under the CDA as it did not provide the required certification.
NileCo’s emailed claim contained the certification language required by FAR 33.207(c) and 41 U.S.C. § 7103(b). The FAR permits the certification to “be executed by any person duly authorized to bind the contractor with respect to the claim,” and there was no question that Mr. Ahmed had such authorization.
However, in agreeing with the government that the email did not constitute a “certified claim,” the Board referenced its earlier decision that held that “to ‘execute’ a CDA certification, there must be a signature by a certifier.” The Board does not explain what it considers to constitute an electronic or digital signature, yet it determines that by including his typewritten name in the email, Mr. Ahmed did not meet this standard:
Here we have no signature, no discrete, verifiable symbol that can be authenticated, only a typewritten signature block …. “Signature or signed” is defined in FAR 2.101 to mean “the discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of the individual, indicates a present intent to authenticate the writing.” A signature need not be handwritten only, but can include electronic symbols associated with electronic or digital signatures.
Other courts have determined that typing a name at the bottom of an email shows the sender’s manifest intent to authenticate the transmission. Typewritten signatures in an email have also been found to satisfy a requirement that there is a “signed writing.” Perhaps the distinction here comes from the fact that the Board referred to the typewritten name as that contained within a “standard signature block,” which may automatically populate into a new email? Regardless of how the line between a typewritten name and an electronic signature will be drawn in future cases, the takeaway from this decision should be that if your company is submitting a $2 million CDA claim, the safest course, even in this digital age, is to take a few minutes to sign a hard copy of your claim.
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