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.
The Claimant/Contractor had a contract for maintenance, modification, and repair of aircraft weapons systems for the U.S. Air Force. Per FAR § 52.233-1, the Contractor certified its claim by applying a digital signature, much like those applied through Adobe Acrobat, DocuSign, or similar software:
A claim certification signature must be verifiable – identification that something is, in fact, uniquely true and accurate. For example, you have probably looked at your signature on a document and simply known whether it was, in fact, your signature or if somebody else tried to sign for you. Most importantly, whatever it was that convinced you of the authenticity, it was unique (e.g., a certain swirl or flourish in your signature, or lack thereof). Signatures are uniquely identifiable and; therefore, verifiable.
The Government argued the Contractor’s digital signature could not be “verified” on the claim certification and that lack of uniqueness made the certification incomplete. The signature part of a claim certification is important to show that the claimant, and not someone else purporting to be the claimant, intended the claim to be true and accurate.
The Armed Services Board of Contract Appeals held the digital signature was sufficiently unique. Even though the digital signature was type-written, it could not have been applied without first inputting at least one unique password into the software platform.
In another opinion, the Board held that a simple, typewritten name is insufficient to certify a claim because no password is needed to simply type your name (e.g., in an e-mail signature block). But, in that case, the Board didn’t consider that the e-mail sender likely had to input a password to access and send the e-mail.
Traditional physical signatures are still okay. To be safe, stick with tried and true methods when dealing with legal matters. The law is slow to catch-up with technology.
Appeal of URS Federal Services, Inc., Armed Services Board of Contract Appeals No. 61443 (Oct. 3, 2019)
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Jonathan J. Straw
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