11/15/2019

Editor’s Notes

The signature on a bid is crucial. When a public project owner receives a bid, the owner must be able to ascertain the identity of the individual signing the bid and the authority of that individual to bind the bidder to the bid. What level of certainty is required and how is this established? Two of the cases in this issue address these questions.

 

The Armed Services Board of Contract Appeals addressed for the first time the use of digital signatures on bids. The board ruled that these cryptographically protected electronic signatures are verifiable and comply with federal statutes and regulations. A digital signature is no more subject to instant verification on its face than ink or electronic signatures.

 

The Louisiana Supreme Court considered the means for establishing an individual’s authority to bind the bidder to the bid. The state public bidding statute authorizes three different methods. The court ruled that a state agency could not recognize only two of those methods. If agencies could pick and choose among the methods, it would create considerable confusion for bidders.

 

The third case in this issue is from the U.S. Court of Appeals for the Federal Circuit, which addresses the difficult situation of a performance surety that takes over completion of a federal project on behalf of its defaulted contractor. The ruling adheres to existing precedent, while calling for abandonment of that precedent in order to avoid driving corporate sureties out of the federal marketplace.

 
 
 

 

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