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Posted on Thursday, September 20, 2018

Typewritten Signature Is Not a Valid Electronic Signature

Now that electronic signatures are becoming common-place, government contractors need to know what qualifies as a valid electronic signature in procurement. An offer that is not properly signed could easily show that the offeror did not intent to be bound by its offer and therefore could be rejected by a contracting officer. Recently, a company’s 500-page proposal was disqualified because, among other reasons, its formal offer did not have the CEO’s “original signature,” but instead had what the offeror believed, erroneously, was a valid electronic signature.

A Navy solicitation required offerors’ proposals to include a signed SF 33, Solicitation, Offer, and Award. One offeror’s SF 33 identified in block 16 its CEO as the person authorized to sign the offer but in block 17, the signature block, the SF 33 only contained the typewritten name of the CEO in a cursive typeface similar to the font in this image.

In other words, the SF 33 had no actual handwritten signature of the company official in ink or an authenticated digital signature. The Navy disqualified the offer because, without a valid signature, the offer was invalid.

The company protested to the Government Accountability Office (GAO), arguing that the CEO’s typewritten name showed that the company was legally bound because it was an “electronic signature.” It argued that the Electronic Signatures in Global and National Commerce (E–SIGN) Act (15 U.S.C. §7001(b)(2)) required the Navy to accept the CEO’s typewritten name as an official signature.

GAO did not agree. In denying the protest, GAO pointed out that E-SIGN is not applicable to the Department of Defense. Moreover, the E–SIGN Act, like FAR, let government agencies decide whether to accept or not accept electronic signatures on contracts.  FAR §4.502(d) provides that “Agencies may accept electronic signatures and records in connection with Government contracts.”

Another FAR provision disqualified the typed signature. FAR §2.101 defined “signature” or “signed” as “the discrete, verifiable symbol of an individual that, 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.”

However, in this case, regardless of whether the cursive computer font was an “electronic symbol,” to GAO, “authenticity” was the issue. The typewritten signature lacked authenticity because anybody could have typed it: “The typed name itself did not constitute a discrete, verifiable symbol that was sufficiently distinguishable to be authenticated. That is, anyone can type a person’s name; without a signature that could be authenticated, the named individual could just as easily disavow the legal instrument on which the typed name is affixed.” Distributed Solutions, Inc., B- 416394, Aug. 13, 2018.

The decision shows how carefully a proposal package must be prepared. Something seemingly as routine as simply signing a proposal could, as here, invalidate hundreds of hours of proposal work.

Distributed Solutions, Inc., B- 416394, Aug. 13, 2018.

 

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, events, and more. This post was published in the September 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here. 

Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson  lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.