United States: ASBCA Revisits Email "Signature" And Finds Typed Name Meets The Test

In a departure from its prior precedent, the Armed Services Board of Contract Appeals (ASBCA) recently held in Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008, that a typed name at the end of an email satisfies the certification requirement under the CDA, so long as it is: (1) discrete; (2) verifiable; and (3) conveys an intent to authenticate.

The contractor at issue submitted a $155,500 demand for payment to the Government in March 2013, thus, triggering the CDA's certification requirement under FAR 52.233-1. The demand itself did not contain a certification, but the contractor sent a follow-up email just prior to the six-year statute of limitations, stating:

Three days after sending this email, the contractor submitted an appeal to the ASBCA pursuant to a "deemed denial" and the Government moved to dismiss asserting that the contractor had failed to sign its certification and, thus, failed to certify its claim. The Board noted that the Government did not argue in its motion that the appeal was premature, as the requisite 60 days had not passed between the certification and the purported deemed denial. However, because at the time of its decision more than 60 days had elapsed since the certification, the ASBCA saw "no useful purpose in dismissing the appeal as premature and requiring appellant to refile."

The starting point for the majority of the ASBCA was critical in shaping the final opinion. If the typed name failed to meet the definition of a signature, then the majority's analysis would have required dismissal under the "failure to certify" line of cases that do not provide an opportunity to cure versus the "defective certification" line of cases that afford the opportunity to cure. With that backdrop guiding their analysis, the majority then focused on whether the typed name contained in the email met the definition of a "signature."

First, the ASBCA looked to the FAR which defines signature as: "the discrete, verifiable symbol of an individual which, when affixed to a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. This includes electronic symbols." FAR 2.101. The ASBCA noted that its prior precedent on this signature issue had previously focused on the concepts of "discrete" and "verifiable," but it found here that the third element of "intent to authenticate" should also be part of the analysis.

Next, the ASBCA walked through the definitions of each element, in order to apply these to the subject email "signature" here. The "discrete" element is defined as being "separate and distinct." The "verifiable" element requires that the mark must be capable of "being tied to an individual." The ASBCA noted the background for this requirement stems from the implications of fraud that accompany a representation to the Government and the idea that the certification requirement was intended to encourage contractors to only make claims that are "careful" and "reasonably precise." The third element is self-explanatory in that it considers whether there is a present intention to authenticate the writing above when affixing one's name at the end of an email.

Applying that rationale, the ASBCA ultimately determined that the contractor's typed name at the conclusion of its email satisfied the signature requirement. Critical to the ASBCA's determination was that the Government and the contractor had corresponded throughout the contract performance period from the same email address as the subject certification email. The ASBCA found that "the name came from an email correspondence which demonstrates that the document came from the sender's email address. If we can satisfy ourselves that the email address is linked to the certifier . . . then the signature is verifiable."

The majority decision expressly overruled Teknocraft, 08-1 BCA ¶ 33,846 at 167,505 "and those cases following it . . . that . . . per se, preclude the use of a typed name, in conjunction with other evidence of the author's identity, from constituting a signature for purposes of CDA certification." Interestingly, there were two concurring minority opinions issued by Judges Melnick and McIlmail that disagreed with the majority's approach in analyzing the facts under the "failure to certify" rationale that could not be cured, rather than "defective certification" that can be cured. The concurring Judges found the final result appropriate, but believed the majority should not have overruled its precedent in Teknocraft and its progeny, and rather should have denied the Government Motion and found the certification email "signature" was a correctible, nontechnical defect.

Despite the disagreement amongst the members of the Board, the takeaway here is that a typed name at the conclusion of an email, generated from an email address that can be tied to the author, and from an email address that the Government has regularly corresponded with, can satisfy the definition of a signature for certification purposes. As Judge McIlmail points out, however, the relaxation of the formalized "signature" requirement could present a "slippery slope" and a "solution in search of a problem" in future fraud and false claims cases where such informal submissions could give rise to significant liability.

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