ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

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Kamaludin Slyman CSC )

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 )

APPEARANCES FOR THE APPELLANT: Bryant S. Banes, Esq.

Sean D. Forbes, Esq.

 Neel, Hooper & Banes, P.C.

 Houston, TX

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.

 Air Force Deputy Chief Trial Attorney

Christopher M. Judge, Esq.

Kyle E. Gilbertson, Esq.

 Trial Attorneys

DECISION OF THE BOARD BY THE SENIOR DECIDING GROUP

OPINION BY ADMINISTRATIVE JUDGE PROUTY

For more than a decade, this Board has held that a typed signature block does not 

meet the requirement for a signature necessary for claims certification pursuant to the 

Contract Disputes Act, 41 U.S.C. §§ 7101-7109, (CDA). See, e.g., NileCo General 

Contracting LLC, ASBCA No. 60912, 17-1 BCA ¶ 36,862; ABS Development Corp., 

ASBCA No. 60022 et al., 16-1 BCA ¶ 36,564; Tokyo Company, ASBCA No. 59059, 

14-1 BCA ¶ 35,590; Teknocraft Inc., ASBCA No. 55438, 08-1 BCA ¶ 33,846. We have, 

however, also held that a “digital signature,” created by software requiring the use of 

some sort of unique identification, could satisfy the CDA’s certification requirement. 

URS Federal Servs., Inc., ASBCA No. 61443, 19-1 BCA ¶ 37,448. Although 

e-commerce has been with us for longer than the period of time encompassed by these 

decisions, the Board’s own movement to an e-filing system, the continued increase in the 

use of digital conventions for transacting business in greater society, and the implications 

of our reasoning in URS have given us reason to revisit the subject.1 The matter before 

us, in which we decide a government motion to dismiss appellant Kamaludin Slyman 

Construction and Supply Company’s (Kamaludin’s) appeals for failure to originate upon 

a claim certified with what the government considers to be a proper signature, presents us 

such an opportunity. Today, we hold that, so long as a mark purporting to act as a 

 1 Because we have precedent of our own directly on point, any change of this rule of law 

for the Board must be accomplished through the Senior Deciding Group, unless it 

is reversed by our reviewing court, the Court of Appeals for the Federal Circuit. 

SWR, Inc., ASBCA No. 56708, 15-1 BCA ¶ 35,832 at 175,220.

ASBCA Nos. 62006, 62007, 62008

Under Contract No. H92237-12-C-0089
2

signature may be traced back to the individual making it, it counts as a signature for 

purposes of the CDA, whether it be signed in ink, through a digital signature application, 

or be a typed name.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

The Combined Joint Special Operations Task Force-Afghanistan awarded the 

above-captioned contract (the contract) to Kamaludin for the lease of certain heavy equipment 

in Afghanistan on December 23, 2011. The box identifying Kamaludin on the first page of 

the contract included the email address, K***.

2 In addition to many other provisions, the 

contract incorporated by reference the standard Federal Acquisition Regulation (FAR) 

Disputes clause, FAR 52.233-1, DISPUTES. (R4, tab 14 at 1, 4, 8) The Disputes clause 

requires that any claim exceeding $100,000 be certified. FAR 52.233-1(d)(2)(i).

By letter dated March 16, 2013, Kamaludin submitted a demand for payment in 

the amount of $155,500.00. Kamaludin’s letter alleged that the government breached the 

contract by moving the equipment from the agreed upon place of performance to two 

different locations and also kept the equipment for five months after the lease expired. 

The letter contained a subject line which stated, “Letter of Claim.” It also contained a 

handwritten signature from Kamaludin’s president. The letter did not contain any 

reference to the CDA’s claim certification language. (R4, tab 19 at 4) 

An email to the Air Force dated March 11, 2019 from the K*** email address is 

below reproduced exactly as it appeared:

(R4, tab 19 at 1; tab 20 at 13)

 2 Following our usual practice, we do not replicate the full email address in this published 

decision, but represent it as K*** throughout.

3 The email received by the government, as reproduced in tab 19 of the Rule 4 file, 

automatically reduced the email address in the “From” header to “Kamaludin 

Slyman,” but, as reflected in tab 20 of the Rule 4 file, the same email was 

forwarded by Kamaludin’s counsel to the government and, in its forwarded state, 
3

On March 14, 2019, Kamaludin filed a notice of appeal with the Board, which we 

docketed as ASBCA No. 62006.4 The notice of appeal stated that this was an appeal 

from the deemed denial of appellant’s March 16, 2013 claim.5

DECISION

I. A CDA Claim in an Amount Greater Than $100,000 Must be Certified, Which 

Requires a Signature.

The CDA requires the certification of claims “of more than $100,000.” 41 U.S.C. 

§ 7103(b). This certification is required to be “executed by an individual authorized to 

bind the contractor with respect to the claim” and must state that:

(A) the claim is made in good faith; 

(B) the supporting data are accurate and complete to 

the best of the contractor’s knowledge and belief;

(C) the amount requested accurately reflects the 

contract adjustment for which the contractor 

believes the Federal Government is liable; and

 

the reproduction also includes the K*** email address in brackets next to the 

Kamaludin Slyman name in the “From” header.

4 Appellant has two additional appeals (ASBCA Nos. 62007 and 62008), which are 

consolidated with this appeal. The allegations in those appeals involve claims 

under $100,000. As such, the adequacy of the claim certification has no bearing 

on our jurisdiction in those appeals. We also note that the government’s motion 

sought dismissal for failure to state a claim upon which relief can be granted in 

ASBCA No. 62007. We will not address that portion of the government’s motion 

in this decision given that nothing in it requires consideration by the Senior 

Deciding Group. 5 Nearly six years passed between appellant’s demand for payment and its notice of 

appeal. However, only three days passed between appellant’s purported claim 

certification and its notice of appeal. The government had the opportunity to 

argue that the appeal was premature when it filed its motion to dismiss on 

April 30, 2019. Instead, perhaps understandably, the government chose to focus 

its motion on the adequacy of the claim certification. At this point, far more than 

60 days have passed from the date of the claim certification and the contracting 

officer has not issued a final decision. Under the circumstances, we see no useful 

purpose in dismissing the appeal as premature and requiring appellant to refile. 

See ABS Development Corp., ASBCA No. 61042 et al., 17-1 BCA ¶ 36,784.
4

(D) the certifier is authorized to certify the claim on 

behalf of the contractor. 

41 U.S.C. § 7103(b).

“It is well settled that certification is a jurisdictional prerequisite for this Board for 

contractor claims over $100,000.” Special Operative Grp., LLC, ASBCA No. 57678, 11-2 

BCA ¶ 34,860 at 171,480 (citation omitted). Although a defective certification does not 

deprive the Board of jurisdiction, 41 U.S.C § 7103(b)(3), the failure to certify at all does 

deprive the Board of jurisdiction and mandates dismissal. Special Operative Group, 11-2 

BCA ¶ 34,680 at 171,480; CCIE & Co., ASBCA Nos. 58355, 59008, 14-1BCA ¶ 35,700 

at 174,816; Baghdadi Swords Co., ASBCA No. 58539, 13 BCA ¶ 35,395 at 173,665.

And, as far as the law is concerned, an unsigned certification is considered to be 

not merely defective, but no certification at all. This is because the “execution” of a 

CDA certification requires a “certifier to sign the claim certification,” Teknocraft, 08-1 

BCA ¶ 33,846 at 167,504 (citing Hawaii CyberSpace, ASBCA No. 54065, 04-1 BCA 

¶ 32,455 at 160,535), thus making the failure to sign the certification language into the 

equivalent of “failure to certify,” which may not be remedied. Hawaii CyberSpace, 04-1 

BCA ¶ 32,455 at 160,535; see also Tokyo Company, 14-1 BCA ¶ 35,590 at 174,392.6

II. What Makes a Valid Signature?

The CDA does not define signature, thus we turn to the FAR for its definition.

7 

See, e.g., URS, 19-1 BCA ¶ 37,448 at 181,967. There, it is defined as “the discrete, 

verifiable symbol of an individual which, 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.” FAR 2.101. In the past, we have looked at this 

definition as having two components: whether the symbol purporting to be the signature 

is “discrete” and whether it is “verifiable,” with “verifiable” being the more critical of the 

two terms. E.g., URS, 19-1 BCA ¶ 37,448 at 181,967-68. Here, we think it may also be 

helpful to consider a third element: whether the symbol indicates the present intention to 

authenticate the writing to which it is affixed.

 6 Judge Hartman’s concurrence in result contends that the Federal Circuit’s recent 

decision in Dai Global, LLC v. Adm’r of the U.S. Agency for Int’l Dev., 945 F.3d 

1196 (Fed. Cir. 2019), has effectively overruled these cases. Without deciding the 

matter, we are not so certain that Dai Global goes that far. In any event, because 

we find herein that the certification was signed, we do not reach the issue of 

whether lack of signature is a curable defect.

7 The FAR has been used elsewhere to flesh out the meaning of terms in the CDA, 

notably, for the pivotal word, “claim.” E.g., H.L. Smith, Inc. v. Dalton, 49 F.3d 

1563, 1564-65 (Fed. Cir. 1995).
5

A. The Meaning of a “Discrete” Symbol

In URS we selected a typical dictionary definition of “discrete,” which was that it 

was “separate and distinct.” URS, 19-1 BCA ¶ 37,448 at 181,968. This remains a 

satisfactory definition.

B. “Verifiable” Means That a Mark Can Be Tied to an Individual

URS turned on the meaning of “verifiable.” In it, we held that, “if one can later 

establish that a mark is tied to an individual, it is verifiable.” URS, 19-1 BCA ¶ 37,448 

at 181,968. We continue to find this to be an appropriate definition. As discussed in 

URS, our practice (and the practice of other bodies) in accepting “ink” signatures, when

neither the government recipient of the certification nor the reviewing court might have 

any basis to recognize, on its face, that the handwritten mark comes from a particular 

individual, argues for an expansive reading of “verifiable.” Moreover, we see no policy 

grounds for an overly-narrow reading of this phrase.

We and our reviewing court, the United States Court of Appeals for the Federal 

Circuit, have long held that the purpose of the CDA’s certification requirement is to 

encourage accurate claims and to discourage (through the potential of civil and criminal 

penalties) the submission of unfounded claims to the contracting officer. As we said in 

Hawaii CyberSpace:

“The purposes of the certification requirement are to 

discourage the submission of unwarranted contractor claims 

and to encourage settlements,” Paul E. Lehman, Inc. v. 

United States, 673 F.2d 352, 354, 230 Ct. Cl. 11, 14 (1982); 

“to push contractors into being careful and reasonably precise 

in the submission of claims to the contracting officer,” 

Tecom, Inc. v. United States, 732 F.2d 935, 937 (Fed. Cir. 

1984); and to enable the government “to hold a contractor 

personally liable for fraudulent claims,” Transamerica 

Insurance Corp. v. United States, 973 F.2d 1572, 1580 (Fed. 

Cir. 1992).

04-1 BCA ¶ 32,455 at 160,533; see also Teknocraft, 08-1 BCA ¶ 33,846 at 167,505 

(signing claim is necessary for holding the signer responsible for falsities contained 

within it).

The policy goal of requiring signatures to deter fraud, though, is bottomed upon 

the notion of its use to identify the person making the false claim so that the claimant can 

be held accountable for it. Hence, we rejected typed “//signed//” (above a typed name as 

a signature) in Teknocraft, and a typed name in ABS. In Teknocraft, we stated that 

“[w]ithout a signature, the purported author of the certification could just as easily 

disavow the certification because “//signed//” cannot be authenticated.” 08-1 BCA 
6

¶ 33,846 at 167,505. In ABS (relying on Teknocraft), we used similar language, stating 

that “a typewritten name, even one typewritten in Lucida Handwriting font, cannot be 

authenticated . . . . [A]nyone can type a person’s name; there is no way to tell who did so 

from the typewriting itself.” 16-1 BCA ¶ 36,564 at 178,099. NileCo, too, followed the 

Teknocraft line of cases without particular elaboration. See 17-1 BCA ¶ 36,862 

at 179,606.

Thus, our conclusions in the prior cases requiring signatures to deter fraud were 

about identification and were not premised on the notion that the legal jeopardy attaching 

to an individual submitting a false claim is any different if the signature is in notarized 

ink than if it is a typed “X” purporting to stand for the individual. Nor could they be. 

The CDA’s fraud provision, 41 U.S.C. § 7103(c)(2), requires only a misrepresentation of 

fact or fraud in the claim, and, in fact, makes no distinction between claims of a monetary 

value that must be certified and those which need not be. Thus, signature is immaterial to 

the applicability of this anti-fraud provision. The False Claims Act, 31 U.S.C. § 3729,

prohibits and punishes presentment of false claims or false records or materials to the 

government, but does not hinge upon there being accompanying signatures of any form. 

Likewise, the general federal false official statement criminal statute, 18 U.S.C. § 1001,

makes no reference to signatures, whether they be ink, typewritten, or non-existent. For 

the perpetrator to be liable under the law, it is enough that the perpetrator use a materially 

false statement, representation, writing, or document. 18 U.S.C. § 1001(a).

As Judge Posner noted almost 20 years ago in a Uniform Commercial Code case 

involving an exchange of emails, although a written signature may perhaps be better 

evidence of identity than a typed one8, “the sender’s name on an e-mail satisfies the 

signature requirement of the statute of frauds.” Cloud Corp. v. Hasbro, Inc., 314 F.3d 

289, 296 (7th Cir. 2002).

Thus, we conclude that a signature which is verifiable in the sense that it permits a 

determination of which individual is responsible for the claim, satisfies the anti-fraud 

policy objectives which are the reason for the CDA’s certification requirement. And this 

is so whatever form the “signature” takes. Teknocraft and those cases following it did not 

allow for this possibility, and are expressly overruled to the extent that they, per se, 

preclude the use of a typed name, in conjunction with other evidence of the author’s 

identity, from constituting a signature for purposes of CDA certification.

C. The Present Intention To Authenticate

The final component of the definition of signature in the FAR is that it 

demonstrate a present intention to authenticate the writing. That is generally read as a 

party’s affixing its name at the end of a document. In Hamdi Halal Market LLC v. 

United States, 947 F.Supp.2d 159 (D. Mass. 2013), the district court applied the 

 8 As discussed below, an email may, in fact, provide better proof of identity than an ink 

signature.
7

Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001-7006

(the ESIGN Act) and recognized that even a typed name at the end of a document could 

convey the intent to authenticate. See 947 F.Supp.2d at 164-65; cf. Cloud Corp., 314 

F.3d at 296 (same result, but not considering ESIGN Act). Whether the ESIGN Act 

strictly applies to CDA certifications is beside the point in our deciding this matter.9 For 

purposes of answering the question of what intent is demonstrated by a typed name at the 

end of a document, the world in which the ESIGN Act applies to most commercial 

transactions is a world in which the use of a name at the end of an email conveys the 

intent to authenticate the writing therein. 

III. The Typed Name at the End of the Email Here Counts as a Signature For 

Purposes of Claim Certification

Because the typed name at the end of the end of the March 11, 2019 email is a 

discrete verifiable mark made with intent to authenticate, it constitutes a signature 

sufficient for the CDA’s certification purposes.

To be sure, a typed name, without more, does nothing to verify the identity of the 

person submitting it (the point we made in ABS being well-taken), but we have more 

here. Crucially, the name came from an email correspondence which demonstrates that 

the document came from the sender’s email address. If we can satisfy ourselves that the 

email address is linked to the certifier (and there are numerous ways we may do that, 

including the practice of the government in communicating with Kamaludin during 

contract performance through that very same email address), then the signature is 

verifiable. Though the government argues that a typewritten name on an email is an 

unreliable marker of identity (thus implying that email, itself, is such an unreliable 

identifier) (see gov’t reply at 8-11), we find this concern to be exaggerated and not any 

different than the risks of forged signatures in ink. In a thoughtful opinion permitting 

email documents to be authenticated by virtue of the email addresses, the district court in 

United States v. Safavian, 435 F. Supp. 2d 36 (D. D.C. 2006), rejected the notion that 

email was particularly subject to alteration compared to, say, paper records:

While the defendant is correct that earlier e-mails that are 

included in a chain – either as ones that have been forwarded 

or to which another has replied – may be altered, this trait is 

not specific to e-mail evidence. It can be true of any piece of 

documentary evidence, such as a letter, a contract or an 

invoice. Indeed, fraud trials frequently center on altered

paper documentation, which, through the use of techniques

such as photocopies, white-out, or wholesale forgery, easily

 9 Kamaludin argues that it does (app. resp. at 2 n.1); the government argues that it does 

not (gov’t reply at 2-5). But the FAR’s definition of signature expressly permits 

the use of electronic symbols, which is the whole point Kamaludin is attempting to 

make through its reference to the ESIGN Act (app. resp. at 2 n.1).
8

can be altered. The possibility of alteration does not and

cannot be the basis for excluding e-mails as unidentified or

unauthenticated as a matter of course, any more than it can be 

the rationale for excluding paper documents (and copies of 

those documents). We live in an age of technology and

computer use where e-mail communication now is a normal

and frequent fact for the majority of this nation's population,

and is of particular importance in the professional world.

435 F. Supp. 2d at 41.

Indeed, other courts have routinely found an email address, combined with other 

indicia within the email, to be sufficient to authenticate the email for admission as 

evidence. In United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000), the court of 

appeals upheld the trial court’s decision to admit emails written by the criminal defendant 

in a fraud case, and considered the email address and the content of the emails to be 

sufficient circumstantial evidence that they originated from the defendant. 235 F.3d 

at 1322-23. In Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), the 

district court recognized Siddiqui and other cases that supported a finding that email 

addresses provide circumstantial proof of authorship, see 241 F.R.D. at 546, 554, and 

even suggested that there might be room for a business email to be self-authenticating. 

Id. at 554. Numerous other courts have followed suit. See, e.g., Am. Fed’n of Musicians 

of United States & Canada v. Paramount Pictures Corp., 903 F.3d 968, 976 (9th Cir. 

2018); United States v. Fluker, 698 F.3d 988, 999-1000 (7th Cir. 2012) (circumstantial 

evidence of authorship of email); Copeland Corp. v. Choice Fabricators Inc., 345 F. 

App’x 74, 77 (6th Cir. 2009) (email from known email address with typed name at end is 

considered “signed”); cf. Cloud Corp. 314 F.3d at 296.

At this stage of the proceedings, we are satisfied that the typed name at the end of 

the email from the same email address with which the government corresponded with 

Kamaludin is a discrete and verifiable mark made with the intent to authenticate the 

certification and we have no basis to suppose that any other individual would have reason 

to falsify the signature. Thus, we treat it as we would a handwritten mark purporting to 

be a signature or a digital signature – no better, no worse: absent the later production of 

evidence proving otherwise, we find that the claim that is the basis of ASBCA No. 62006

is certified.
9

CONCLUSION

Because the typed name of Mr. Slyman following the certification language in his 

March 11, 2019 email satisfied the signature requirement for Kamaludin’s claim, the 

government’s motion to dismiss is denied. Because of this result, we need not reach 

Kamaludin’s additional arguments regarding the absence of a signature being a curable 

defect (app. resp. at 4-5) or the government’s supposed waiver of the signature requirement 

(id. at 5-6) – both of which appear to be contrary to our precedent in any event.

Dated: September 25, 2020

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I concur I concur

JOHN J. THRASHER

Administrative Judge

Chairman

Armed Services Board

of Contract Appeals

RICHARD SHACKLEFORD

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I concur I concur

OWEN C. WILSON

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

MICHAEL T. PAUL

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)
10

I concur I concur

REBA PAGE

Administrative Judge

Armed Services Board

of Contract Appeals

CHERYL L. SCOTT

Administrative Judge

Armed Services Board

of Contract Appeals

I concur in result (see separate opinion) I concur in result (see separate opinion)

CRAIG S. CLARKE

Administrative Judge

Armed Services Board

of Contract Appeals

TERRENCE S. HARTMAN

Administrative Judge

Armed Services Board

of Contract Appeals

I concur in result (see separate opinion) I concur in result (see separate opinion)

MARK A. MELNICK

Administrative Judge

Armed Services Board

of Contract Appeals

TIMOTHY P. MCILMAIL

Administrative Judge

Armed Services Board

of Contract Appeals
11

SEPARATE OPINION BY ADMINISTRATIVE JUDGE CLARKE

I concur in the result and the reasoning of the majority which finds the typed 

signature block to be a signature in these circumstances, although I believe that 

Teknocraft and the cases that followed it may be distinguished on the facts and need not 

be overruled to obtain this result.

Dated: September 25, 2020

CRAIG S. CLARKE

Administrative Judge

Armed Services Board

of Contract Appeals
12

SEPARATE OPINION BY ADMINISTRATIVE JUDGE HARTMAN

I concur in the result because I agree with the concurring opinions of 

Judges McIlmail and Melnick that the email here is not a valid CDA claim certification. 

I note simply that the Federal Circuit’s recent decision in Dai Global, LLC v. Adm’r of 

the U.S. Agency for Int’l Dev., 945 F.3d 1196 (Fed. Cir. 2019), effectively has overruled 

our prior line of precedent that unexecuted documents, such as the email here, do not 

constitute a “defective certification” that later can be corrected.

Dated: September 25, 2020

TERRENCE S. HARTMAN

Administrative Judge

Armed Services Board

of Contract Appeals
13

SEPARATE OPINION BY ADMINISTRATIVE JUDGE MELNICK

I concur in the result that the motion to dismiss should be denied. Though the 

email is not a valid CDA certification, it is a defective certification that can be corrected.

I. Email

The CDA requires a contractor to certify that a claim exceeding $100,000 meets 

the statute’s well-known criteria. 41 U.S.C. § 7103(b). In the nearly half century since 

the CDA was enacted, the Board has never found that a conventional email is a 

satisfactory certification. In fact, it has held the opposite multiple times. It was correct.

Congress ascribed great importance to the certification requirement so as to 

discourage unwarranted claims. Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 

354 (Ct. Cl. 1982). It is also well established that the CDA, along with its certification 

requirement, is a waiver of sovereign immunity. Winter v. FloorPro, Inc., 570 F.3d 

1367, 1370 (Fed. Cir. 2009). As such, its language must be strictly construed, or 

construed narrowly. Id. at 1370, 1373. Strictly applying the legal definition in use at the 

time of enactment, to certify means “to testify in writing.” Certify, Black’s Law 

Dictionary (rev. 4th ed. 1968). In turn, to “testify” is “to bear witness; to give evidence 

as a witness.” Testify, Black’s Law Dictionary (rev. 4th ed. 1968).

These definitions suggest that a certification evokes a degree of formality. Merely 

firing off a run-of-the-mill email reciting the language in section 7103(b) does not rise to 

the level of formally giving testimony or evidence as a witness, just as I think an email 

fails to satisfy the requirements for making a declaration under 28 U.S.C. § 1746. It is 

proper under these definitions to expect more. Indeed, appellant has failed to cite, nor 

have I found, any precedent holding that a certification mandated by a federal statute can 

be made in an email. Considering the significance of the CDA certification to Congress, 

I am confident that if squarely confronted with that question it would have expected 

something more solemn than an email.

Up until now the Board’s holdings have comported with my conclusion, though it 

has analyzed the matter differently. Rather than concentrate upon the meaning of the 

word “certify,” the Board has found that the generic definition of the word “signature” 

contained in FAR 2.101 controls whether an email is a certification. That provision 

requires a symbol that is discrete and verifiable. I would not have taken this approach 

because nothing in the FAR indicates that its definition of “signature” also defines the 

word “certify” in section 7103(b). Regardless, the Board has found that emailed 

certification language accompanied only by a typed name is not sufficiently discrete and 

verifiable to support a certification. Teknocraft Inc., ASBCA No. 55438, 08-1 BCA 

¶ 33,846; see also Nileco Gen. Contracting LLC, ASBCA No. 60912, 17-1 BCA 

¶ 36,862; ABS Dev. Corp., ASBCA No. 60022, 16-1 BCA ¶ 36,564; RECO Rishad Eng. 

Constr. ORG, ASBCA No. 60444, 16-1 BCA ¶ 36,558. Viewed through the Board’s 

chosen lens, these conclusions make sense. Email accounts are commonly used by more 
14

than one individual. That is not typically the case for either “wet” or digital signatures. 

Email accounts can be cancelled. Email accounts can be hacked. There is little basis to 

conclude an email is any more trustworthy than a typed name on company letterhead. 

That is not adequate.

Appellant now asks the Board to change its mind and repudiate its well established 

precedent rejecting emailed certifications. I agree with Judge McIlmail that the doctrine 

of stare decisis requires adherence to the Board’s past holdings. Stare decisis enhances 

predictability and efficiency by establishing settled expectations through prior rulings. 

Decker Corp. v. United States, 752 F.3d 949, 956 (Fed. Cir, 2014). Explaining why 

reexamination of well-settled precedent can be harmful, the Supreme Court has said:

Justice Brandeis once observed that “in most matters it is 

more important that the applicable rule of law be settled 

than that it be settled right.” To overturn a decision 

settling one such matter simply because we might believe 

that decision is no longer “right” would inevitably reflect 

a willingness to reconsider others. And that willingness 

could itself threaten to substitute disruption, confusion 

and uncertainty for necessary legal stability.

John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (quoting Burnet 

Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting opinion)). Stare decisis 

directs us to disfavor revisiting a debate simply because reasonable arguments continue to 

exist on both sides. Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744 

F.3d 1272, 1283 (Fed. Cir. 2014) (en banc), vacated sub nom. Lighting Ballast Control 

LLC v. Universal Lighting Techs., Inc., 135 S. Ct. 1173 (2015) (quoting Morrow v. 

Balaski, 719 F.3d 160, 181 (3rd Cir. 2013) (Smith, J. concurring)).

Of course, the Board recognizes stare decisis. See Boeing Co., ASBCA 

No. 30404, 86-3 BCA ¶ 19,314. Furthermore, stare decisis applies to the Senior 

Deciding Group’s reconsideration of issues previously decided (here multiple times) by 

our panels. This is because the panel decisions reflect Board precedent entitled to due 

regard for its value to the law’s stability, requiring good and sufficient reasons to reject it 

at a later date. See Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1316 (Fed. 

Cir. 2013) (en banc) (explaining that stare decisis concerns apply to court of appeals 

panel opinions when the issues decided are reconsidered by the en banc court). Finally, 

stare decisis has special force upon a prior interpretation of a jurisdictional statute. The 

reason is that the statute can always be changed. John R. Sand & Gravel Co. v. United 

States, 552 U.S. at 139; but cf. Procopio v. Wilkie, 913 F.3d 1371, 1380 n.7 (Fed, Cir. 

2019) (en banc) (observing that it is not the case that a statute’s interpretation can never 

be overruled).

I am unaware of anything happening in the three years since the Board most 

recently rejected emailed certifications in Nileco that overcomes the special stare decisis 
15

force upon our settled law. The appellant has not identified any intervening development 

showing the national body of law applicable to statutorily mandated certifications is 

moving counter to us. There is also no other basis for making such a radical change. The 

Board has recently recognized certifications executed with digital signatures that use 

unique software generated identifiers. URS Fed. Servs., Inc., ASBCA No. 61443, 19-1 

BCA ¶ 37,448. These distinct devices are regularly used in formal transactions. And a 

claimant may always send its certification with a traditional wet signature. This requires 

little more than an envelope and postage. See Menominee Indian Tribe of Wis. v. United 

States, 764 F.3d 51, 61 (D.C. Cir. 2014), aff’d, 136 S. Ct. 750 (2016). Neither option 

presents an unusual burden. Moreover, if traditional wet signatures (which have 

customarily been accepted for generations) pose the potential for falsification, we should 

not compound that risk by now accepting emails with all of their own verification 

problems. The Board’s current law is thoroughly reasonable and consistent with the 

formality associated with a certification. For these reasons, I would reject common 

emails that purport to certify claims under section 7103(b).

II. Correction of a Defective Certification

Where I do part ways with the Board’s prior law is with its refusal to recognize 

that an email is a sufficient attempt at a certification to be correctible. As it is also well 

known, a defective certification does not deprive the Board of jurisdiction. It can be 

corrected. 41 U.S.C. § 7103(b)(3). As far as I can tell, the Board first held in Hawaii 

Cyberspace, ASBCA No. 54065, 04-1 BCA ¶ 32,455, that a purported certification 

containing a typed signature is not subject to correction. The Board stated in a somewhat 

conclusory fashion that the legislative purposes for certification dictate that “the failure to 

sign is more akin to a ‘failure to certify’” and is therefore not curable. Id. at 160,535. 

However, since then the right to correct defective certifications has been readily applied 

at the appellate level. Nontechnical defects are correctible. Even a defect arising from an 

intentional, reckless, or negligent disregard for the applicable certification requirements is 

correctible. Dai Global, LLC v. Adm’r of the United States Agency for Int’l Dev., 945 

F.3d 1196 (Fed. Cir. 2019). The legislative purposes for permitting correction dictate 

allowing it here. Accordingly, though I would reject appellant’s request that we deem its 

emailed certification valid, I concur in the result that the government’s motion to dismiss

should be denied.

Dated: September 25, 2020

MARK A. MELNICK

Administrative Judge

Armed Services Board

of Contract Appeals
16

SEPARATE OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

I concur in the result. I agree with Judges Melnick and Hartman that, following 

Dai Global v. Administrator of the United States Agency for International Development, 

945 F.3d 1196 (Fed. Cir. 2019), the certification is defective, but curable. I do not agree 

that the certification here was signed. The legal doctrine of stare decisis requires us, 

absent special circumstances, to treat like cases alike. June Med. Servs. L. L. C. v. Russo, 

No. 18-1323, 2020 WL 3492640, at *22 (U.S. June 29, 2020) (Roberts, C.J., concurring). 

The question whether the certification is signed is controlled by our decisions of only a 

few years ago; no special circumstance justifies a different conclusion. See id. at *29.

Additionally, from Fid. & Deposit Co. of Maryland v. United States, 2 Cl. Ct. 137, 

144 (1983) (emphasis added), comes the following legislative history:

Admiral Rickover was the prime mover of the certification 

provisions before the Congress. At hearings on the CDA on 

June 14, 1978, he advised that the new law should:

“[r]equire as a matter of law that prior to evaluation of any 

claim, the contractor must submit to the Government a 

certificate signed by a senior responsible contractor official, 

which states that the claim and its supporting data are current, 

complete and accurate. In other words, you put the contractor 

in the same position as our working man, the income tax 

payer who must certify his tax return....”

Contract Disputes Act of 1978: Joint Hearings on S.2292, 

S.2787 & S.3178 Before the Subcomm. on Federal Spending 

Practices and Open Government of the Senate Comm. on 

Governmental Affairs and the Subcomm. on Citizens and 

Shareholders Rights and Remedies of the Senate Comm. on 

the Judiciary, 95th Cong., 2d Sess. 21 (1978).

The Court of Claims cited this testimony in Paul E. Lehman, 

Inc. and commented notably on the legislative history of the 

CDA:

“Admiral Rickover wanted to deter contractors from filing 

inflated claims which cost the Government substantial 

amounts to defeat. He sought to do so by subjecting 

contractors to financial risk if their claims were 

unreasonable.... [He] viewed the certification requirement as a 

necessary prerequisite to the consideration of any claim. The 

provisions Congress adopted to include the certification 

requirement were based upon Admiral Rickover's written 
17

suggestions and fairly must be deemed to have incorporated 

his view concerning the effect of the certification 

requirement. [citing United States v. Vogel Fertilizer Co., 455 

U.S. 16, 31–32, 102 S. Ct. 821, 830–31, 70 L. Ed. 2d 792 

(1982)] .... “The import of the language of the Act and its 

legislative history is that unless a claim has been properly 

certified, it cannot be considered under the statute..... Unless 

that requirement is met, there is simply no claim that this 

court may review under the Act.” Id. at –––, 673 F.2d at 355.

In view of that history, our precedent reflects a perfectly reasonable position, 

particularly given the importance of the certification requirement. It is not too much to 

ask that a contractor affix a hand-written signature or what we all understand to be a 

“digital” signature to express ceremoniously his solemn vow (much like witnesses raise 

right hands to give their oaths to provide truthful testimony) that:

[t]he claim is made in good faith, the supporting data are 

accurate and complete to the best of the contractor’s 

knowledge and belief, the amount requested accurately 

reflects the contract adjustment for which the contractor 

believes the Federal Government is liable, and the certifier is 

authorized to certify the claim on behalf of the contractor.

Indeed, not only have we followed our precedent several times in recent years, the 

Government Accountability Office expressly followed our lead only two years ago in 

Distributed Solutions, Inc., B-416394 (Aug. 13, 2018). In this sense, our change in 

direction is a solution in search of a problem. What box this watering-down will open, 

and what slippery slope this unwarranted and unnecessary relaxation establishes 

(presumably requiring litigation to sort out, including, perhaps, in the United States Court 

of Federal Claims and federal district courts handling fraud and false claims cases), we 

can only guess.

Dated: September 25, 2020

TIMOTHY P. MCILMAIL

Administrative Judge

Armed Services Board

of Contract Appeals
18

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 62006, 62007, 62008,

Appeals of Kamaludin Slyman CSC, rendered in conformance with the Board’s Charter.

Dated: September 29, 2020

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals