ASBCA Relaxes Prohibition on Typed Signatures for Claims, Allows Claimant to Certify With a Typed Name at the End of an Email; Appeals of Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008

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Government’s motion to dismiss for lack of proper certification is denied. The claimant submitted an emailed claim certification with a typed signature. The government moved to dismiss, contending that claims cannot be certified with typed signatures. The board held that to the extent its previous cases had precluded typed signatures, those cases are overruled. The board ruled that be a valid, a signature must satisfy three elements: (1) the signature is discrete, i.e., separate and distinct; (2) it’s verifiable in that it can be tied to one individual and (3) the signature indicates a present intent to authenticate the writing. The board concluded that although typed, the email, which contained the proper certification and was sent from the email address of the person signing, satisfied these criteria.

Kamaludin Slyman CSC had a contract with the government for the lease of heavy equipment. In March 2013 Kamaludin sent a letter to the government, alleging the government breached the lease agreement and demanding payment of $155,500. The letter did not contain any reference to the Contract Dispute Act’s claim certification language.

The government did not respond to the demand letter, so in March 2019, Kamaludin sent an email to the government, which contained the CDA’s certification language. The email also contained the typed signature of Kamaludin’s principal. Kamaludin then filed an appeal with the ASBCA. The notice of appeal stated that it was an appeal of the deemed denial of the 2013 claim. The government moved to dismiss the appeal for lack of proper certification.

Under the CDA, a certified claim must be signed by an individual authorized to bind the contractor with respect to the claim. For several years, the board has held that a typed signature block does not satisfy the signature requirement for a certified claim. But the board has also held that a digital signature created by software that requires some sort of unique identification could satisfy the CDA’s signature requirement. The question in this case was whether a typed signature at the end of an email satisfies the certification requirement.

The CDA does not define a signature, so the court looks to the FAR’s definition: “a discrete, verifiable, symbol of an individual which, when affixed to a writing . . . indicates a present intention to authenticate the writing.” The board noted that its past cases had found that the definition had two elements: discrete and verifiable. The board now reasoned that it would be helpful to consider a third element, namely, whether the signature indicates a present intent to authenticate the writing.

A signature is discrete if it is separate and distinct. A signature is verifiable if it can be tied to an individual. The point of the verifiable element is to deter fraud—that is, to identify the person who has made a false claim so the claimant can be held accountable. In the past, the board held that typed signatures are not verifiable because they cannot be authenticated; anyone can type a name. Nevertheless, citing Judge Richard Posner, the board noted that a name on an email satisfies the signature requirement of the statute of frauds. With this in mind, the board concluded that a signature is verifiable if it permits a determination of which individual is responsible for the claim, and this is so for whatever form the signature takes. The board held that to the extent its previous cases barring a typed signature did not allow for the possibility of authentication, those cases are overruled. The board concluded there is no per se preclusion a typed signature.

As to the newly identified present-intent-to-authenticate element, the board noted caselaw holding that under the Electronic Signatures in Global and National Commerce Act, a typed signature at the end of a document conveys an intent to authenticate. The board held that in a world where the Electronic Signatures Act applies to most transactions in the world, the use of a name at the end of an email conveys an intent to authenticate the writing therein.

Applying these standards, the board held that the typed name at the end of Kamaludin’s email counted as a signature for purposes of claim certification. The email correspondence demonstrated the document came from the sender’s email address. Indeed, the board noted that it came from the same email address the government used when communicating with Kamaludin during contract performance.

The government argued that a typed name in an email is an unreliable marker of identity. The board found that this concern was exaggerated and no different than the risks of forged signatures in ink. The board reasoned that other courts have routinely found that an email address, with other indicia in the email, sufficient to authenticate the email for admission into evidence. Here, absent evidence showing that the signature on the Kamaludin email was false, the typed name on the email was sufficient to certify the claim.

Almost the entire board signed on to the majority opinion, but a few judges concurred only in the result. One judge reasoned that it was unnecessary to overturn the cases that previously banned types signatures, reasoning that those cases could be distinguished on their facts. Other judges reasoned that the court board should not permit emailed certifications. Those judges, however, found that while an email certification was not valid, it was merely defective and could be corrected.

Kamaludin is represented by Bryant S. Banes and Sean D. Forbes of Neel, Hooper & Banes, P.C. The government is represented by Jeffrey P. Hildebrant, Christopher M. Judge, and Kyle E. Gilbertson of the Air Force

ASBCA - Kamaludin Slyman