An electronically unsigned undertaking act makes the offer irregular
In that case, the State Procurement Service (SAE) had launched a restricted tendering procedure with a view to concluding a framework agreement for the provision of assistance services under the control of computer project work. In the case of a public contract linked to IT services, the offer was to be transmitted only in paperless form pursuant to the provisions of Article 56-II of the Code des Marches Publics. The offer of an unsuccessful candidate was dismissed as unlawful on the ground that the undertaking act she had filed was not signed electronically.
Rule n ° 1:
An offer whose commitment is not, before the deadline for the submission of tenders, signed by a person duly authorized or authorized to commit the applicant company is irregular and must be eliminated as such even before being examined. This solution applies only to the formalized procedures (open and restricted tendering, competition, competitive dialogue) and excludes negotiated-market procedures where the contracting authority is obliged to negotiate even with candidates who have submitted an irregular tender, which can therefore be aimed at the hypothesis envisaged.
Rule n ° 2:
In the absence of an electronic signature of the contract, the electronic signature of the other documents making up the tender is not sufficient to establish the candidate's legal commitment. In other words, the irregularity relating to the absence of an electronic signature of the act of engagement can not be offset by the electronic signature of the other parts of the tender.
Rule n ° 3:
The contracting authority has no obligation to set up an alert system informing the candidate concerned of the absence of an electronic signature of his / her undertaking (Article 56 of the CMP).
Rule n ° 4:
A candidate who realizes, after the deposit of his offer, the absence of electronic signature of his offer to the possibility to regularize it before the deadline of delivery of the offers.
Practical advice :
- If you are a contracting authority: you have no obligation to alert candidates of the irregular nature of their offer. On the other hand, you must be very vigilant as to the respect of the signature of the act of engagement, in formalized procedure, whose defect entails the elimination of the candidate without any possibility of rectification (EC 27 October 2011, Dépt des Bouches du Rhône, No. 350935). For example, the electronic signature of a zip file is not worth signing the parts it contains (TA Toulouse, March 09, 2011, MC2I / CNRS Company, No. 1100792). Similarly, scanned signatures are prohibited (Article 1316-4 of the Civil Code).
- If you are a candidate: When submitting your offer electronically via an electronic platform, check the electronic acknowledgment that you signed the undertaking. In formalized procedure (except case negotiated procedure), do not forget to sign your act of engagement otherwise your offer will be automatically rejected without possibility of regularization.
Board of state
N ° 383587
ECLI: FR: CESSR: 2014: 383587.20141107
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mrs Natacha Chicot, rapporteur
Mr Bertrand Dacosta, public rapporteur
FOUSSARD; SCP PIWNICA, MOLINIE, lawyer (s)
Reading of the Friday, November 7, 2014
IN THE NAME OF THE FRENCH PEOPLE
Considering the summary appeal and the additional memorials, registered on August 8, 18 and 28, 2014 to the litigation secretariat of the Council of State, presented for the Minister of Finance and Public Accounts; the minister asks the Council of State:
1 °) to cancel the ordinance n ° 1411103 / 3-5 of July 24th, 2014 by which the judge of the emergency of the administrative court of Paris, ruling in application of the article L. 551-1 of the code of administrative justice, a, at the request of the company BearingPoint France, enjoined the purchasing department of the State to resume the procedure of allocation of lot 2 of a framework agreement for the realization of assistance services under the control of IT project work, third-party application recipe and assistance on free software including BearingPoint France's offer;
2 °) ruling in interlocutory, to reject the application of BearingPoint France;
3 °) to charge the company BearingPoint France the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice;
Considering the other parts of the file;
Given the code of public contracts;
Having regard to the Decree of 14 December 2009 on the dematerialization of public procurement procedures;
Considering the decree of 11 October 2012 creating a treatment called "state purchasing platform";
Considering the code of administrative justice;
After hearing in open session:
- report by Ms Natacha Chicot, auditor,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to Me Foussard, lawyer of the Minister of Finance and Public Accounts, and to the SCP Piwnica, Molinié, lawyer of BearingPoint France;
1. Considering that it follows from the provisions of Article L. 551-1 code administrative justice that the president of the administrative court or the magistrate he delegates can be seized, before the conclusion of a public contract or delegation of public service, a failure by the contracting authority to fulfill its publicity and competition requirements; that under the terms of Article L. 551-2 of the same code: "The judge can order the author of the failure to comply with its obligations and suspend the execution of any decision that relates to the signing of the contract except where it considers that, in the light of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. / It may, moreover, annul the decisions relating to the awarding of the contract and delete the clauses or requirements intended to appear in the contract which do not comply with those obligations "; that finally, according to the article L. 551-10 of this code: "The persons authorized to initiate the recourse envisaged in the articles L. 551-1 and L. 551-5 are those which have an interest to conclude the contract and which are likely to be harmed by the breach invoked, as well as the representative of the State in the case where the contract must be concluded by a local authority or a local public institution. (...) ";
2. Considering that it appears from the documents in the file submitted to the Judge of the Administrative Court of Paris that, by a notice of public call published on October 5, 2013, the State Purchasing Department, service to national competence attached to the Minister in charge of the budget, has launched a restricted tender procedure with a view to the conclusion of a framework agreement on the "provision of assistance to project management of IT projects third application recipe and software support "consisting of four lots; that the filing of applications and offers was made exclusively on the platform interministerial dematerialization purchases state "PLACE"; that, by a decision of 24 June 2014, BearingPoint France's bid, candidate in respect of lot 2, was rejected as irregular on the ground that the paperless commitment document it had filed on the Platform PLACE did not have an electronic signature; that the Minister of Finance and Public Accounts appeals in cassation against the order of 24 July 2014 by which the judge of the Court of Administrative Court of Paris, seized by BearingPoint France on the basis of Article L. 551- 1 of the Code of Administrative Justice, ordered the State Purchasing Department to resume the award procedure of Lot 2 by including the offer of BearingPoint France, on the grounds that the contracting authority could not, on the sole ground of lack of electronic signature of the undertaking by BearingPoint France, estimate its offer inadmissible;
3. Considering that under Article 53 (III) of the Code des Marches Publics: "Inappropriate, irregular and unacceptable offers are eliminated (...)"; that under Article 11 of the Code: "(...) For contracts awarded under the formalized procedures, the act of engagement and, where applicable, the specifications are the component documents. / The act of engagement is the piece signed by a candidate for a framework agreement or a public contract in which the candidate presents his bid or proposal (...) "; that under Article 48 of the same Code: "I - Tenders shall be presented in the form of the act of engagement defined in Article 11. / The act of engagement for a contract or an agreement -framework passed in accordance with a formalized procedure, when the offer is transmitted electronically, is signed electronically under conditions fixed by order of the Minister in charge of the economy. / (...) "; that according to IV of Article 56 of the same Code: "In cases where electronic transmission is mandatory and in those where it is a faculty given to candidates, the contracting authority ensures the confidentiality and security of transactions on a computer network accessible in a non-discriminatory manner, in accordance with the terms and conditions set by order of the Minister of the Economy "; that under Article 5 of the decree of 14 December 2009 on the dematerialization of public procurement procedures: "The filing of applications and tenders submitted electronically or electronically will give rise to a acknowledgment of receipt indicating the date and time of receipt "; that finally, Article 3.7.7. of the PLACE platform user guide, to which the rules of the consultation referred, specifies that the electronic acknowledgment, which constitutes proof of the filing of the opposable file by the tenderer, indicates "each transmitted file, its weight, as well as the name of the associated signature token, if any, and its weight ";
4. Considering, in the first place, that it follows from these provisions that an offer whose undertaking is not, before the deadline for submission of tenders, signed by a person duly authorized or authorized to commit the applicant company is irregular and must be eliminated as such before being examined; that the judge summary of the administrative court of Paris could thus, without making mistake of law, judge that in the absence of electronic signature of the act of engagement, the electronic signature of the other documents composing the offer of BearingPoint France was sufficient to establish the legal commitment of this company;
5. Considering, secondly, that it is common ground that the acknowledgment of receipt sent to BearingPoint France did not mention any "token" of signature associated with the act of engagement; that, in these circumstances, that this lack of mention was not sufficient to establish that the undertaking deed of the applicant company was not accompanied by its electronic signature, on the ground that it was not demonstrated, either the absence of dysfunction of the PLACE platform nor the existence of a device signaling to the candidates the lack of electronic signature of their documents, the judge of the Court of Administrative Court of Paris also made an error of law;
6. Whereas it follows from all the foregoing that, without it being necessary to examine the other grounds of appeal, the order under appeal must be set aside;
7. Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated by the BearingPoint France company;
8. Considering that it follows from the investigation and is not disputed that the company BearingPoint France has received on March 17 at 2:19 pm an electronic message, sent by the platform PLACE, attesting the filing of its offer on this platform at the same date and time; that it appears from this document which, in accordance with the provisions cited in point 3, specifies the nature of the recorded files and constitutes the proof of their filing by the candidates, that if the act of engagement was registered on the platform, no mention of the name and weight of the associated signing "token" was included in the list of documents acknowledged; BearingPoint France, which was informed, after the submission of its offer, that the legal commitment registered on the platform was not accompanied by its electronic signature and could, if necessary, decide to to complete its offer before the deadline for submission of tenders, ie 17 March 2014 at 17:00, can not, therefore, usefully argue that this absence is the result of a dysfunction of the platform; that it also can not usefully support that it would not have been informed of the absence of electronic signature of the act of engagement by a specific warning device, since in any case neither the provisions of Article 56 of the Code des Marches Publics nor the documents of the consultation provided for the setting up of such a device;
9. Whereas it follows from all the foregoing that BearingPoint France is not justified in requesting the cancellation of the award procedure; that, consequently, its conclusions presented under Article L. 761-1 code administrative justice must be rejected; whereas, on the other hand, it is appropriate, in the circumstances of the case, to charge the State, under the same provisions, the sum of EUR 3 000 under the before the Council of State;
Article 1: The order of 24 July 2014 of the Judge of the Court of Administrative Court of Paris is annulled.
Article 2: BearingPoint France's application before the judge of the Paris Administrative Court and its conclusions presented to the Conseil d'Etat pursuant to Article L. 761-1 of the Administrative Justice Code are dismissed .
Article 3: The company BearingPoint France will pay to the State the sum of 3 000 euros under article L. 761-1 code administrative justice.
Article 4: This decision shall be notified to the Minister of Finance and Public Accounts and BearingPoint France.
Abstracts: 39-02-005 CONTRACTS AND ADMINISTRATIVE CONTRACTS. TRAINING OF CONTRACTS AND MARKETS. FORMALITIES OF ADVERTISING AND COMPETITION. - USE OF AN ELECTRONIC PLATFORM FOR THE SUBMISSION OF TENDERS - ABSENCE OF ELECTRONIC SIGNATURE OF THE ACT OF COMMITMENT OF A CANDIDATE - 1) MEDIUM TAKEN FROM DYSFUNCTION OF THE PLATFORM - INOPERANCE WHEREAS THE PLATFORM SENT A MESSAGE WHICH RESULTED THAT NO ELECTRONIC SIGNATURE HAD BEEN RECORDED - 2) OBLIGATION TO SET UP A SPECIFIC CANDIDATE ALERT DEVICE ON THE ABSENCE OF REGISTRATION OF AN ELECTRONIC SIGNATURE - ABSENCE .
Summary: 39-02-005 1) Having received on 17 March at 14:19 an electronic message, sent by the electronic platform for the submission of tenders, which testified to the lodging of its tender, specified the nature of the files registered and did not include any mention of the name and weight of the associated signature token in the list of documents of which he was acknowledged, the candidate, who became aware, after the submission of his tender, that the legal commitment registered on the platform form was not accompanied by its electronic signature and could, if necessary, decide to complete its offer before the deadline for submission of tenders, ie 17 March 2014 at 17:00, can not, therefore, usefully argue that this absence would result from a dysfunction of the platform .... ,, 2) The applicant can not usefully argue that he would not have been informed of the absence of an electronic signature of the act of commitment by a device specific warning, since in any event neither the provisions of Article 56 of the Public Procurement Code nor the consultation documents provided for the setting up of such a mechanism.