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Loki

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  1. As a result of the internal review (and who wants to cross folks w/ the power of the pen that can come audit again and again) the 1102s can electronically sign contract records pursuant to internal policy but contractors are precluded from signing contract records any other way than via handwritten ink signature. That's a real pain in the can. As far as the case law history on what is and isn't considered to be valid legal signature for contracts, I can't tell you what is and isn't black letter law. However, anecdotally, it does seem from a cursory review that handwritten ink signatures are considered to be the canon form of an official signature. In other cases other forms of signature, e.g., stamped, engraved, electronic pen, photocopied signatures, Et cetera, have been adjudicated as binding based upon the totality of circumstances. I renew the question: is there a clear lever (statutory or argumentative) out there that would pry open the door to accepting contractor faxed or e-mailed documents with its signature images as official (to be writings, authenticated and binding)? What if the contracting officer wants to agree with a given contractor that various types of signatures are valid and considered binding - can the parties simply agree to such a thing in a handwritten signed in ink document for a given contract and then proceed from there with confidence once those grounds rules are established. Would that be a sound framework by which to proceed (in your estimation based upon what you know from the above) and could you leverage that to answer the mail/silence the criticism?
  2. WIFCON gurus, An internal review in a federal agency has suggested that unless a contractor's signature is handwritten in ink on a contract record it isn't official, i.e., not a writing & not authenticated so not binding. While the agency provides for 1102s to use electronic signature capabilities in Adobe Acrobat and MS-Word since those actions are tied to their CACs, the agency does not issue CACs to contractors with which it contracts. That effectively precludes (in the internal review's concept of the world) contractor's from signing a contract record any way but with an original handwritten ink signature. For the 1102s that rules out receiving faxed documents w/ an image of a contractor agent's signature, rules out scanned & e-mailed documents w/ an image of a contractor agent's signature, etc. for official contract records and rolls back the clock a few decades. When hundreds of contracts are involved the logistics of snail mail for ink signatures is daunting and inefficient. While ESIGN, Pub.L. 106-229, did provide for contracting parties to conduct electronic commerce provided they agreed to it, it also created authentication requirements to be established at the agency level. In this case the agency's authentication is not supportive. Are these 1102s stuck having to get a contractor agent's handwritten ink signature on contract records or is there a lever (statutory or argumentative) out there that would pry open the door to accepting faxed or e-mailed documents with signature images as official (to be writings, authenticated and binding)?
  3. WIFCON readers, I'm advising on an agency level IDIQ evaluation for professional engineering services. Prices to be on contract will be ceiling prices for various line items of professional labor, with task orders competed for upcoming requirements. The solicitation language makes line item price reasonableness important, but also has a balancing test that gives consideration of the line item prices in the context of the overall offered/evaluated price (line items x estimated quantities for each). That balancing test was intended to make sure no line item prices were excessive, but to allow for natural variation amongst offers above and below the mean (or median) without setting arbitrary cutoffs for line item pricing - with the notion that true outliers on a CLIN would be deemed a high risk, and result in offeror elimination. Total price to the Government was to be assessed through the lens of the overall offered price values. Both the evaluation of line item pricing and the evaluation of overall offered price had roles. New players have come into the mix, and are debating taking a very hard line on CLIN level pricing, as opposed to just scrubbing the CLIN level for excessive prices - which in my view may nix the balancing test, potentially rendering the role of the overall offered price case meaningless, and I see risk in that. The expressed reason for the new take on what to do with CLIN level price evaluation is that the solicitation states CLIN prices will be reviewed for reasonableness. True, but that's true regardless of if that's stated or not, and has to understood in context of the overall price evaluation model so as to not upset the balancing test (to not render it meaningless). It seems to come down to two different views of what is reasonable for CLIN level prices in the award of a contract. Any suggestions of what to say to or show (e.g., words, FAR or case law cites) folks to help them use jurisprudence in this matter - they seem stuck and the conversation is looping?
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