In case of contract disputes, contractors must typically carry the burden of proof to establish the excusability of delays in performance of government contracts. This burden of proof must be carried by meeting the preponderance of the evidence standard. That is, contractors must generally show that it was more likely than not that the government was responsible for the performance delays. Depending on the terms of the contract and the circumstances surrounding the delay, contractors may need to rely on various types of evidence to achieve this. While the burden of proof may be relatively low, proving excusability of delays may nevertheless be challenging in the absence of properly documented evidence. For instance, the government may be in control of some of the evidence necessary to establish excusability, or there may be concurrent events contributing to delays in performance. Such scenarios may require contractors to produce different types of evidence, which may complicate their path to recovery. Therefore, contractors attempting to prove excusable delays must document, maintain, and produce detailed records demonstrating the government’s share of responsibility for the delay in performance.

The interpretation of federal contracts is generally governed by the plain language of the contract. This means that adjudicative forums assign meaning to federal contracts primarily by giving the contractual words their ordinary sense and without referring to extrinsic evidence. If the plain meaning of contractual words is unambiguous, that meaning generally controls for the purposes of contract interpretation. However, there may be situations where the contract terms are unclear or ambiguous permitting more than one reasonable interpretation. In such situations, adjudicative forums may rely on certain extrinsic evidence to resolve contract interpretation disputes.

• Extrinsic Evidence in the Solicitation Phase

In resolving the meaning of ambiguous terms in case of interpretive disputes in federal contracts, adjudicative forums often look to the discussions between the government and prospective contractors in the solicitation phase of the procurement. Statements made by government officials during their interactions with prospective contractors at pre-proposal conferences, industry days, or pre-award testing may be used as evidence in contract interpretations as long as such statements do not directly contradict the contract language. As with other extrinsic evidence in the context of contract interpretation, written communications, such as handouts and meeting minutes, generally hold much more weight than oral statements made by government officials.

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.

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).