The use of electronic signatures in federal contracting is generally consistent with the Electronic Signatures in Global and National Commerce (E-SIGN) Act. Enacted in 2000, the E-SIGN Act promotes the use of e-signatures in domestic and international commerce by establishing the legal equivalency of electronic records, signatures, and contracts with their paper counterparts. The E-SIGN Act is applicable to most commercial transactions with a few notable exceptions, including required notices that directly impact consumer rights. Consistent with the E-SIGN Act, the Federal Acquisition Regulation (FAR) permits the use of electronic signatures in federal government contracting. Specifically, FAR § 4.502(d) allows federal agencies to accept electronic signatures and records in connection with government contracts. Additionally, FAR § 2.101 defines a signature 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. The FAR definition expressly states that it encompasses electronic symbols.

An electronic signature may take many forms, such as a typed name, a digitally scanned image of a wet-ink signature, or a signature affixed using an e-signature technology solution. Consequently, an electronic signature can comprise of an electronic sound, symbol, or process attached to or logically associated with a contract or other record and executed or adopted by a person with an intent to sign the record. Therefore, contracts may not be denied legal effect solely because they are in an electronic form or they are executed in an electronic form. The parties' intent to be bound is the primary consideration in determining the enforceability of an electronic signature. Therefore, scanned signatures are legally binding electronic signatures as long as the parties intend to be bound by them. The FAR also requires an electronic signature to be discrete and verifiable as belonging to the signing individual. That is, the signature must be a separate, distinct, and true representation of the signing individual’s present intent to authenticate the document or record. Finally, to have a legal effect, the electronic signature, which can be a symbol, sound, or process, should be knowingly attached to the contract, document, or record at issue.

As contracting parties, government agencies and their contractors must adhere to specific requirements in retaining contracts and records generated during the formation and administration of federal contracts. The Federal Acquisition Regulation (FAR) contains requirements describing specific retention periods of various records throughout the procurement lifecycle. It is important for contractors to ensure strict compliance with these record retention policies and procedures as contract documents and related materials may be required as supporting evidence in case of bid protests or claims litigation. Furthermore, contract documents and materials may also be subject to government audits during the required retention periods. Contractors should also be generally cognizant of retention requirements applicable to federal agencies in case they need access to government files and records. Depending on the circumstances, contractors may obtain government records during the discovery process in case of litigation or pursuant to a Freedom of Information Act (FOIA) request. Federal agencies also make certain contractual documents and records available publicly.

Contractor Retention of Files & Records Relating to Government Contracts

The Government Accountability Office (GAO) is a legislative agency that performs a quasi-judicial function in resolving government contracts bid protests. Created under the Budget and Accounting Act of 1921, the GAO has been issuing bid protest decisions since a few years after its inception. The Competition in Contracting Act (CICA) of 1984 eventually codified GAO’s bid protests jurisdiction. Under its bid protest function, the GAO adjudicates alleged violations of federal procurement rules and regulations during the award, proposed award, or the solicitation of a government contract. One of the advantages of filing a bid protest at the GAO is the condensed 100-day timeline within which the GAO generally resolves bid protests. This relatively short timeline of protest resolution means that contractors can usually get their protests resolved quickly, efficiently, and cost-effectively. However, this shortened 100-day protest resolution timeline also means that protestors at the GAO must adhere to strict timeliness rules and contend with a document production process that is much shorter and more narrowly focused than the traditional discovery process at the Court of Federal Claims (COFC).

The Federal Acquisition Regulation (FAR) encourages open communications between the government and its prospective contractors from the early stages of requirements identification up to the submission of proposals. Such exchanges of information between government stakeholders and prospective contractors often lead to early identification and resolution of procurement issues. These early-stage communications may relate to various topics, including acquisition strategy, planning schedules, requirements feasibility, suitability of proposal instructions, and evaluation criteria. Such open communications also provide prospective offerors and industry stakeholders an opportunity to resolve any questions or concerns about the upcoming procurement in a timely manner. The government utilizes several different techniques to provide information to and receive input from prospective contractors before the receipt of proposals.

Such methods include industry or small business conferences, public hearings, market research, one-on-one meetings with potential offerors, pre-solicitation notices, draft requests for proposals (DRFP), and requests for information (RFI). Depending upon the nature, scope, and size of the procurement, the procuring agency may employ one or more of these techniques to solicit industry input. For instance, since the FAR does not require a specific format for RFIs, the government may utilize RFIs when it does not intend to award a contract presently but nevertheless wishes to obtain price, delivery, capabilities, or other market information for acquisition planning purposes. Meanwhile, a complex multi-stage solicitation for a sizeable dollar-value procurement may require a combination of RFIs, pre-solicitation conferences, site visits, and industry days to gather the requisite input during the pre-solicitation and pre-award phases.