Recently I was asked to opine about the legal pitfalls surrounding the signing and sealing of 3-D plans; a technology platform for construction project documents that Ohio government entities like ODOT may soon embrace. Signing documents electronically is nothing new. For more than 20 years, it has been the law in Ohio to allow “electronic” signatures to suffice as a legally binding or “wet” signature for the purposes of documenting the commitment of an entity. With limited exception under Chapter 1306 of the Ohio Revised Code (ORC), an electronic signature is valid and enforceable. The Ohio Department of Transportation (ODOT) is required to follow the rules generated by the Ohio Department of Administrative Services (ODAS) regarding electronic signatures, which are standard among state agencies and have been in effect in some form since 2001. The same requirements apply to all state agencies such as Ohio Facilities Construction Commission (OFCC) for architects, Ohio Department of Natural Resources (ODNR), Ohio Environmental Protection Agency (OEPA), and others. In the last few years, digital signatures via blockchain have specifically been recognized as meeting the electronic signature definition found under Ohio law. See R.C. 1306.01(H) and HB177 of GA 134. Blockchain will be the next level of e-signing documents in the future.
In my experience while at ODOT, the Department evolved a good deal and has e-signatures readily available for documents should they chose to use them. To be sure, an agency like ODOT is concerned about signing formal contracts, but also documents such as construction plans which often carry an engineer’s stamp. By law, the signature of ODOT’s Director is required on all construction plans. ORC Section 5501.311 notes that all plans shall meet with the approval of the Director, and under ORC 5517.01, the Director shall indorse his approval on all plans. The Director’s signature has traditionally been accomplished by his designee who is granted signature authority in writing from the Director.
Signing vs. Stamping
For the purposes of this article, it is important to distinguish between an “electronic signature” and an “electronic stamp,” although the terms are often used interchangeably in law and policies. A signature commits a person to a contract or specific legal requirement, such as the Director’s signature on a set of plans. A stamp or seal is the affirmation of an engineer, surveyor, or architect that the document they are providing meets all the legal and technical requirements of their profession and that the document is intact from the date of their seal and can remain intact in perpetuity.
With regard to the stamping / sealing of construction plans, Ohio’s State Board of Registration for Professional Engineers and Surveyors promulgated rules allowing electronic sealing / stamping of plans in early 2002. Under ORC 4733.14:
*** Plans, specifications, plats, reports, and all other engineering or surveying work products issued by a registrant shall be stamped with the seal and be signed and dated by the registrant or bear a computer generated seal and electronic signature and date ***
The Board elaborates on the above Revised Code section under Ohio Administrative Code 4733-23-01 as follows:
A) Each registrant may upon registration obtain a seal ***. Plans, specifications, plats, reports and all other engineering or surveying work product issued by a registrant shall be stamped with the said seal and be signed and dated by the registrant, or bear a computer generated seal and electronic signature and date. ***
(D) Plans, specifications, plats, reports and all other engineering or surveying work product bearing a computer generated seal and electronic signature and date shall have an electronic authentication process attached to or logically associated with the electronic document. The electronic signature must be unique to the person using it; capable of verification; under the sole control of the person using it; linked to a document in such a manner that the electronic signature is invalidated if any data in the document is changed.
From this one can presume that the Board wishes a Professional Engineer (PE) / Professional Surveyor (PS) — when providing an electronic stamp — to affix his/her stamp in such a way that the document cannot be changed once they stamp it and that the PE/PS has a verification process in place to assure its accuracy over time.
For proper e-signature / e-stamp use, a state agency using construction plans must follow both the electronic seal requirement of the Board and the ODAS requirements of electronic signatures. ODAS has plenary authority over all things IT through a multitude of policies, rules, codes and statutes starting with R.C. Section 125.18.
Under Ohio Administrative Code 123:3-1-01, ODAS directs that, if an agency wants to have the ability to receive and sign documents electronically, they must provide the overarching security protocols for that signature or document, which allows the agency to:
- (a) Document uses of electronic transactions;
- (b) Conduct a transaction risk assessment of each set of similar electronic transactions;
- (c) Use, as a minimum, technology standards and/or security procedures that are appropriate for the level of transaction risk as determined by the security assessment; and
- (d) Establish and maintain documented security policies and procedures ***.
Once done, any signature (or stamp) can be generated electronically.
OAC Section 123:3-1-01 was updated in 2019 and should be read, understood thoroughly and followed for the agency to have a proper e-signature / e-seal process that is compliant with ODAS rules and Ohio law so the integrity of the document or transaction is clear in perpetuity, and so that the employees performing the actions are cognizant of their role in the process and comfortable that they are following proper procedures.
Recommendations for Now and the Future
Different agencies in Ohio government have internal groups looking into 3-D modeling and the e-signing/ e-stamping of the models. If they would ask, my informal advice to ODOT or any state agency as they move forward with more e-signing / e-stamping, is to include the following for any new “documents” (or 3-D models) that are going to be electronically signed, sealed, and/ or accepted by them:
- From the licensed professional who is e-stamping the document, obtain a verification that they: a) have a unique identifier system for each digital stamp or seal they provide; b) demonstrate they are in control of their document as it is transitioned to the agency so that no changes can be made to the document; c) have a process in place to verify compliance and rejection for non-compliance with the aforementioned requirements; and d) ensure their documents are easily viewable and can be reproduced for manual inspection if necessary.
- For the employee who is processing a document e-stamped from Part I and perhaps e-signing themselves, there should be a process to meet the ODAS requirements including: a) documenting uses of the electronic signature process; b) receiving a formal risk assessment; c) demonstrating the electronic signature meets current technology standards and security protocols; and d) having the overall process reduced in writing or to policy that is administered by a responsible person with proper authority from the Director.
Blockchain technology, with the proper protocols and policies implementing it, can accomplish all the above, and would be invaluable if an agency like ODOT gravitated to receiving 3-D plans. It allows for a digital key (held by the plan stamping engineer, architect, or surveyor) to be set up as secure and immutable, using cryptographic tools in a protected network. With this key, the 3-D plan can be shared on the secure network with all the proper users, and remain accessible but still locked and irreversible. Blockchain will truly open the door for 3-D modeling, plans, and document processing. Unfortunately, I do not know of any agency that has this technology and that is using it for this application. ODAS’s 2020-22 Technology Strategic Plan suggested a Future Focus on things like blockchain technology, but that has not come to fruition (although ODAS may be working on an RFP for it). Given their role in all things IT for state government, ODAS OIT should move forward with policies, guidelines, and templates for a pilot project for one state agency to take on; perhaps ODOT will ready to be the first.