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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)?

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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.

What is the basis for this assertion?

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Every 1102 is "stuck" following their organization's rules. In your case, an internal review has "suggested" . . . . Has a decision-maked adopted the suggestion? Often, decision-makers ignore reviews that don't provide helpful suggestions.

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As far as I know the FAR does not prohibit electronic signatures – see the definition of “signature” in FAR 2.101, “Contracting Officer Signature” in FAR 4.101, and “Electronic Commerce in Contracting” FAR 4.502(d). Unless the Head of your Agency does not want to use electronic signatures I would think they are allowable. You may want to look into a signed/scanned electronic file and print out a copy for the file. Many ways to do expedite the process using combinations of electronic and manual processes.

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Can you also use the GPEA 44 USC 3501 in your arguments as well with the internal reviewer? I know you say the agency does not have supportive authentication-- but I'd check the link to see what, exactly, authentication is needed--is the signature embedded in the document, or does it appear separately?

GPEA- "The Act specifically states that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form, and encourages Federal government use of a range of electronic signature alternatives."

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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?

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Guest Vern Edwards
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)?

See FAR 4.502 (mentioned in an earlier post):

(a) The Federal Government shall use electronic commerce whenever practicable or cost-effective. The use of terms commonly associated with paper transactions (e.g., “copy,” “document,” “page,” “printed,” “sealed envelope,” and “stamped”) shall not be interpreted to restrict the use of electronic commerce. Contracting officers may supplement electronic transactions by using other media to meet the requirements of any contract action governed by the FAR (e.g., transmit hard copy of drawings).

(B) Agencies may exercise broad discretion in selecting the hardware and software that will be used in conducting electronic commerce. However, as required by Section 30 of the OFPP Act (41 U.S.C. 426), the head of each agency, after consulting with the Administrator of OFPP, shall ensure that systems, technologies, procedures, and processes used by the agency to conduct electronic commerce--

(1) Are implemented uniformly throughout the agency, to the maximum extent practicable;

(2) Are implemented only after considering the full or partial use of existing infrastructures;

(3) Facilitate access to Government acquisition opportunities by small business concerns, small disadvantaged business concerns, women-owned, veteran-owned, HUBZone, and service-disabled veteran-owned small business concerns;

(4) Include a single means of providing widespread public notice of acquisition opportunities through the Governmentwide point of entry and a means of responding to notices or solicitations electronically; and

(5) Comply with nationally and internationally recognized standards that broaden interoperability and ease the electronic interchange of information, such as standards established by the National Institute of Standards and Technology.

( c) Before using electronic commerce, the agency head shall ensure that the agency systems are capable of ensuring authentication and confidentiality commensurate with the risk and magnitude of the harm from loss, misuse, or unauthorized access to or modification of the information.

(d) Agencies may accept electronic signatures and records in connection with Government contracts.

Does that answer your question? (Allow me to answer that --- Yes, it does.) While agencies may accept electronic signatures, they do not have to do so.

See also OMB Memorandum 00-15, OMB Guidance on Implementing the Electronic Signatures in Global and National Commerce Act, available at http://www.whitehous...oranda_m00-15/.

See also National Institute of Standards and Technology-Use of Electronic Data Interchange Technology to Create Valid Obligations, GAO Decision B-245714, 71 Comp. Gen. 109 (December 13, 1991):

[A]gencies may create valid obligations using EDI systems which meet NIST standards for security and privacy.

http://www.gpo.gov/fdsys/pkg/GAOREPORTS-B-245714/html/GAOREPORTS-B-245714.htm

And on, and on, and on..., which a little Google research would have revealed.

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