Federal Acquisition Regulation (FAR) 2.101 defines a signature as the discrete, verifiable symbol, including electronic symbols, 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 provides that federal agencies may accept electronic signatures and records in connection with government contracts. Therefore, contracting officers (COs) possess the discretion to supplement electronic transactions with other media to meet the requirements of any contract action governed by the FAR. At the same time, the Electronic Signatures in Global and National Commerce (E-SIGN) Act of 2000 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 applies to most commercial transactions, with a few exceptions. Notably, however, the E-SIGN Act does not apply to the Department of Defense (DOD) and specifically provides that federal agencies need not accept electronic signatures with respect to a government contract. Thus, while electronic signatures are regularly accepted in various contract actions across the federal procurement lifecycle, agencies are under no regulatory obligation to accept an electronic signature without reservation.

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, an electronic signature may take many forms, including a typed signature, but in federal contract actions that permit the use of electronic signatures, a signature affixed using a reputable e-signature technology solution is preferable. Such electronic signatures generally satisfy the requirement that the signature be discrete and verifiable as belonging to the signing individual and knowingly attached to the document. When accompanied by a digitally scanned image of a wet-ink signature, electronic signatures definitively meet the additional criteria of being a separate, distinct, and true representation of the signing individual. Furthermore, because such electronic signatures are generally date- and time-stamped, they demonstrate the signing individual’s present intent to authenticate. Thus, electronic signatures created with reputable e-signature technology that includes all the aforementioned components are at least as effective as wet signatures in most contract actions.

Even when using current and reputable e-signature technology, contractors should be mindful that federal agencies may impose additional requirements for contract actions due to their internal standards, standalone solicitation or contract requirements, or in other specific contexts within the procurement lifecycle. For instance, electronic signatures are not acceptable for the execution of certain documents involving product recalls or matters affecting health or safety. Similarly, federal contracts involving the transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials may involve the need for specific transportation documents that may not be electronically signed. For solicitations that require original hard copy bid guarantee documents, such as a bid bond, the surety agent’s original signature and seal are required. In such cases, it is well within the agency’s discretion to reject an electronically transmitted facsimile of bid guarantee documents as only containing a copy of the surety agent’s signature. There may also be additional considerations regarding electronic signatures and e-signature technologies for foreign companies contracting with the U.S. government, including technological compatibility, data privacy rules, and local national regulations that affect those entities.

To satisfy the certification requirement of the Contract Disputes Act (CDA), the Armed Services Board of Contract Appeals (ASBCA) has previously held that an electronic signature must be discrete, verifiable, and demonstrate a present intent to authenticate. Thus, at least in this limited context and forum, as long as a signature meets these three requirements, it does not matter whether it is signed in ink, via a digital signature application, or even a typed name. ASBCA decisions have held that any mark purporting to act as a signature, if traceable to the individual making it, counts for the purposes of the CDA certification. In contrast, the Government Accountability Office (GAO) has found the typewritten name of a contractor’s Chief Executive Officer (CEO) in a cursive font in the signature block of an SF 33 insufficient under the FAR for signing and acknowledging an amendment when the request for proposal (RFP) required proposals to contain a completed and signed SF 33, along with a signed copy of the amendments. The GAO explained that the typewritten name did not constitute a discrete, verifiable symbol that was sufficiently distinguishable to be authenticated, as anyone can easily type a person’s name and the named individual can just as easily disavow the signature.

Ultimately, the parties’ intent to be bound remains the primary consideration in determining the enforceability of an electronic signature in government contract actions. When electronically signing contract actions, contractors should use authenticated digital signatures that are discrete and verifiable, such as a scanned image of a wet-ink signature affixed using e-signature technology that contains a visible date-and-time stamp and a verifiable signature log. The use of electronic signatures generated with such technology generally satisfies all the elements of the FAR’s definition of a signature, which requires a discrete, verifiable symbol, affixed to a writing with the knowledge and consent of the individual and that indicates a present intention to authenticate. However, contractors must still account for the discretion afforded by the FAR to agency officials to supplement electronic transactions with other media to meet the requirements of contract actions. Thus, even when using e-signature technology from reputable providers, contractors should be aware of any agency- or program-specific requirements that may apply in the execution of various documents across the federal procurement lifecycle. When in doubt, contractors should seek direction from relevant government officials or consult their government contracts attorney to ensure compliance.

This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.