Construction project professionals routinely send e-mails with “signatures,” which typically include the sender’s typewritten name, title, contact information, and/or company logo. But, this sort of e-mail “signature” is not enough to certify a claim to the Government.
A recent decision of the Armed Services Board of Contract Appeals dismissed an appeal by finding the claimant’s typical e-mail signature was not enough to properly certify a claim. The Board stated proper signatures could have been handwritten or digital (as applied in a pdf).
On a project for the U.S. Army Corps of Engineers at Manas International Airport, Kyrgyzstan, the Contractor submitted a claim by attaching it to an e-mail. The Contractor properly included all the words certifying the claim in the body of the transmittal e-mail. The “Director” for the Contractor “signed” the e-mail with his typewritten name, title, and contact information (a typical e-mail “signature” block).
Under FAR § 2.101, a proper signature is “a discrete, verifiable symbol of an individual.” Under this Board decision, there are two proper signatures:
- A handwritten signature or
- Digital signature (as in a pdf).
But, other types of proper signatures could include:
- Fingerprint or
- Photograph of your face (think about unlocking an iPhoneX).
These other types were not addressed by this Board decision, but could be considered “discrete, verifiable symbol(s) of an individual.” Nevertheless, I would stick with the tried and true handwritten signature.
Interestingly, the Board did not discuss how a password necessary to digitally sign a pdf compares to the password access necessary to send an e-mail. If the two are comparably secure, then a typewritten e-mail signature block should be as effective as digitally signing a pdf.
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim for time and money.
On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
