The idea of electronic signatures is now decades old. And federal legislation legitimizing and encouraging electronic signatures has been on the books for years. So, how about government contracting? Have electronic signatures made any headway in that space? Let’s take a look at the state of affairs—at least to the extent it’s discernible.

E-Sign Act

As the digital age dawned, a forward-thinking U.S. Government passed the E-Sign Act (codified at 15 U.S.C. § 7001 et seq.). That law, enacted in 2000, did a few things relevant to our discussion:

  • It generally blesses the use of electronic signatures—and legitimized their validity—for use in interstate commerce.
  • But the law doesn’t require either private parties or Government agencies to adopt electronic signatures for their contracts.
  • Government agencies can choose to adopt electronic signatures for contracting purposes.
  • Government agencies can specify which technologies are acceptable in connection with their contracts.

So, while the E-Sign Act opened the door to electronic signature proliferation, it didn’t cause a sea change in how the Government conducts its acquisition business.

FAR Clauses

What does the FAR say on the subject?

The definition of “signature” encapsulates the concept of an electronic one.

Signature or “signed” means 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. This includes electronic symbols.

Further, FAR 4.502(c), which was implemented in 2003, gives agencies discretion to accept electronic signatures: “Agencies may accept electronic signatures and records in connection with Government contracts.” But no agency is compelled to roll out a electronic signature technologies or accept electronic signatures from contractors.

Other than that, the FAR is largely silent on the issue.

What’s the current state of electronic signatures in government contracting?

Electronic signature technologies, like DocuSign, have been approved by FedRamp (a program for assessing security risks for cloud-based computing) for federal government use. And agencies are using such platforms to conduct some business.

Moreover, from court decisions and general experience, electronic signatures are common among the ranks of contracting officers. They frequently sign contracts and other document-related documents (notices to proceed, letters of concern, modifications, etc.) with an electronic signature. But on the contractor side, electronic signatures seem less common—they tend to still a handy ball point pen.

Unfortunately, there is no (or at least I haven’t found) a list of agencies who, under FAR 4.502(c), have opted to use and allow electronic signatures in their procurements; nor is it easy to decipher which agencies have adopted electronic signature policies. That said, some agencies, such as the General Services Administration, allow for contracting officer’s to execute contracts and purchase orders with electronic signatures (though its policy doesn’t address contractor signatures). Other agencies, such as the Department of Commerce presumably allow electronic signatures for all contract parties.

The biggest takeaway is this: there is no standardized policy for using electronic signatures in the federal procurement sphere. Nor does there appear to be a detectable effort to migrate both contractors and contracting officers to electronic signatures. Wet ink and scanning, at least for contractors, remains the prevailing technology.

Contract Disputes Act

Under the Contract Disputes Act, contractors submitting claims to the Government valued over $100,000 must sign a claim certification. That certification ultimately gives a board of contract appeals or the Court of Federal Claims jurisdiction over the claim (if the contractor pursues an appeal). Case law from those tribunals allows contractors to use electronic signatures to sign their certifications under FAR 33.207(e). So, at least in that corner, contractors can use electronic signatures.

What now?

If you’re a technology-driven contractor, you might start asking contracting officers whether the agency will permit an electronic signature—on your proposal, on the contract, on modifications, and other documents. With enough demand, perhaps agencies will begin accepting and accommodating of electronic signatures in a meaningful way. And they might even launch streamlining electronic signature technologies. Perhaps, the Government just needs some concerted pushing to implement something its already inclined to do.

Electronic Signatures in Government Contracting was last modified: March 14th, 2023 by John Mattox