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, the 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 ballpoint is simply not electronically convenient. Government contractors must have less technology when signing claims.
The CDA states that every 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 and belief;
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 Federal Procurement Regulation (“FAR”) 33.207 (c) and the dispute clause in each contract. The FAR also establishes that the certification can be executed 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.” The “signature” is defined in the FAR as the discreet and verifiable symbol of an individual that, when placed in a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. This includes electronic symbols.
Failure to sign the certification as required deprives the Court of Federal Claims or Contract Appeals Boards of jurisdiction from hearing the claim and is not a correctable defect that can be corrected to restore jurisdiction.
Below are four cases from the last ten years (the last of which cites a 1993 case), in which a “pen and ink” signature would have prevented 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 (“Director Anwar Ahmed”). The Board dismissed the claim despite the contractor claiming that there had been a deal allowing the use of the typewritten signature block. The Council noted that the parties could not override the jurisdictional requirement of a certification executed through a course of negotiation and could not confer jurisdiction by agreement of the parties.
(two) ABS Dev. Corp., ASBCA No. 60022 et al., November 17, 2016. For some of the appeals claims, the contractor used multiple types of a name (presumably electronically typed) that were intended to be signatures. “A typewritten name, even one typed in the Lucida Handwriting typeface, 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 the name of a person, there is no way of knowing who did it by typing itself. ”These documents were discarded as unsigned certifications.
(3) Tokyo Co, ASBCA No. 59059, April 23, 2014. The claim was stamped “TOKYO COMPANY For Contracting and General Services Bagdad-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, its address and the typewritten but unsigned name of the general manager “are not particularized and do not specifically identify the person who executes the certification.” Again, the claim was dismissed.
(4) Teknocraft, Inc., ASBCA No. 55438, April 3, 2008. The company marked its certification as follows:
// signed //
The Board stated that the notation “// signed //” in the signature block was tantamount to not having a signature and was a fatal flaw. “Computer-generated nonspecific notation is not a discrete verifiable symbol that can be authenticated. As we discussed in Hawaii Cyberspace, citing Youngdale & Sons Const. Co v. USA, 27 Fed. Cl. 516, 561, n. 87 (1993), the need to sign the certification is to hold the signer responsible for any falsehood it contains. Without a signature, the so-called certification author could just as easily disallow 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 to sign a CDA claim or certification can be a big mistake. Use the “low-tech” method of signing them: with a pen, not a computer. Don’t write “signed” or anything else; insert a real, live signature of an authorized person to link to your company and avoid this easy trap. 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 typed signature, the risk is too great.
Additional note: The Electronic Signatures in National and Global Commerce Act (“E-SIGN”) does not require the government to accept electronic signatures. The law states that a government agency does not need to accept electronic signatures with respect to a contract. See Excel Bldg. & Dev. Corp., B- 401955, December 23, 2009, 2009 CPD ¶ 262, quoting 15 USC § 7001 (b) (2), FAR 4.502. The Office of Management and Budget (“OMB”) has issued guidance for federal agencies explaining that the Act does not obligate 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 the National and Global Trade Law, Memorandum to the Heads of Departments and Agencies, M-00-15, OMB, September 25, 2000.