As soon as the offer is irregular, the electronic signature must be established with certainty.
EC 26 June 2015, Minister of Defense, Req. No. 389599
As soon as the offer is irregular, the electronic signature must be established with certainty. The Council of State also recalls that an offer must be considered as irregular, which does not contain all the documents or information required by the documents of the consultation.
Rule 1: The electronic signature must be established with certainty
The rules for the use of electronic signatures in the markets are laid down in the decree of 15 June 2012 on electronic signatures in public markets.
Article 2-II of the Ministerial Decree of 15 June 2012 on the electronic signature in public contracts stipulates in Article 2 (II) that the signatory, together with the signed document, transmits the instructions for carrying out the procedures. due diligence. This manual contains, at a minimum, information about the procedure for verifying the validity of the signature, as well as all information to verify that the electronic signature certificate used has not expired or been revoked, as well as the integrity of the signed file.
These verifications can be performed automatically, when the techniques used on the buyer profile allow, with the exception of verifying the identity of the signatory of the document.
In the present case, the instructions sent by one of the candidates at the request of the contracting authority did not make it possible to establish with certainty the validity of his electronic signature, and in particular the integrity of the act of engagement. signed or its lack of modification after the deadline for submission of tenders. In these circumstances, the Conseil d'Etat considers that the contracting authority was entitled to consider the tender as irregular pursuant to Article 53 of the Public Procurement Code.
Rule 2: An offer which does not contain all the documents or information required by the documents of the consultation may be considered by the contracting authority as irregular.
As a reminder, the notion of irregular offer is defined by article 35-I-1 ° of the Code des Marches Publics as an offer which, while providing a response to the need of the contracting authority, is incomplete or does not meet the requirements made in the public notice of competition or in the documents of the consultation ".
Rule 3: Determination of the judge of the pre-contractual summary with territorial jurisdiction over public contracts
It is apparent from the article of Article R. 312-11 of the Administrative Justice Code that disputes relating to contracts, contracts, quasi-contracts or concessions fall within the jurisdiction of the administrative court within whose jurisdiction these contracts, contracts, quasi-contracts or concessions are executed. If their execution extends beyond the jurisdiction of a single administrative court or where the place of performance is not specified in the contract, the competent administrative court is the court in whose jurisdiction the contracting public authority or first of the public authorities named in the contract signed the contract. It follows from these provisions that the judge competent to rule on a pre-contractual injunction presented on the basis of Article L. 551-1 of the Code of Administrative Justice is the judge of the court in which the contract is to be executed.
Board of state
ECLI: FR: CESSR: 2015: 389599.20150626
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr Olivier Henrard, rapporteur
Mr Bertrand Dacosta, public rapporteur
Reading of the Friday, June 26, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
SARL Olympe Service asked the Administrative Court of Marseille, on March 13, 2015, first, to order the Minister of Defense to comply with its obligations of transparency, publicity and competition in the context of the consultation launched on October 30, 2014 to carry out various cleaning services for the Alphonse-Laveran army training hospital in Marseille, and to cancel the decision to reject his candidacy for three lots of this contract or failing to cancel the procedure under penalty of 100 euros per day of delay.
By an order n ° 1501973 of April 9, 2015, the judge of the administrative court of Marseille annulled the procedure as from the examination of the offers and enjoined the minister of the defense to resume it at this stage in the case where he would consider pursuing it.
By an appeal filed on 20 April 2015 to the litigation secretariat of the Conseil d'Etat, the Minister of Defense asks the State Council:
1 °) to cancel this order;
2 °) ruling in summary, to reject the request of SARL Olympe Service.
Considering the other parts of the file;
- the code of public contracts;
- the Ministerial Decree of 15 June 2012 on the electronic signature in public markets;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Olivier Henrard, master of petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
1. Considering that Article L. 551-1 of the Code of Administrative Justice provides: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of advertising and competition to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, the delegation of a public service or the selection of a shareholder economic operator of a joint venture company with sole operation./ The judge is seized before the conclusion of the contract ";
2. Considering that it appears from the documents in the file submitted to the judge hearing the application for interim relief that the Directorate for Supply of Health Products of the Ministry of Defense, whose seat is in Fleury-les-Aubrais (Loiret), launched on 30 October 2014 an open tendering procedure for the realization of various cleaning services on behalf of the army training hospital Alphonse-Laveran, which is located in Marseille (Bouches-du-Rhône) ; that, by a decision of March 3, 2015, the candidacy of SARL Olympe Service to each of the three lots of this public contract was dismissed as irregular on the grounds that the electronic signature of his deed was not valid; that, by an order of 9 April 2015, against which the Minister of Defense appeals in cassation, the judge of the interim administrative court of Marseille granted the application submitted by the company on the basis of Article L. 551-1 of the Administrative Justice Code by canceling the procedure as of the date of the examination of the tenders and ordering the Minister to resume it at this stage in the event that he intends to pursue it;
3. Considering that under Article R. 312-1 of the Code of Administrative Justice: "Where not otherwise provided for by the provisions of Section 2 of this Chapter or by a special text, the The administrative court having territorial jurisdiction is the one in whose area of competence the authority legally has its seat which, either by virtue of its own power or by delegation, has taken the contested decision or has signed the contract at issue. Where the act has been signed by several authorities, the competent administrative tribunal shall be the one in whose jurisdiction the first of the authorities named in that act is situated; that under the first paragraph of Article R. 312-11 of the same code: "disputes relating to contracts, contracts, quasi-contracts or concessions fall within the jurisdiction of the administrative court in whose jurisdiction these contracts, contracts, quasi-contracts or concessions are executed. If their execution extends beyond the jurisdiction of a single administrative court or where the place of performance is not specified in the contract, the competent administrative court is the court in whose jurisdiction the contracting public authority or first of the public authorities named in the contract signed the contract, without which, in this case, there is to take into account an approval by the higher authority, if this approval is necessary "; that it follows from these provisions that the judge competent to rule on a pre-contractual summary presented on the basis of Article L. 551-1 of the Code of Administrative Justice is the judge of the court of emergency in the jurisdiction of which the contract must be executed; that, consequently, the judge of the summary of the administrative court of Marseilles did not make error of law while retaining its competence to rule on the request for summary presented by the SARL Olympe Service;
4. Considering that under Article 53 (III) of the Code des Marches Publics: "Inappropriate, irregular and unacceptable offers are eliminated (...)"; that is particularly irregular an offer which, not containing all the pieces or information required by the documents of the consultation, is incomplete; that under Article 56 of the same Code: "II. The contracting authority may require the transmission of applications and tenders by electronic means (...) / IV. - In cases where the electronic transmission is mandatory and where it is a faculty given to the candidates, the contracting authority ensures the confidentiality and the security of the transactions on a computer network accessible in a non-discriminatory way, according to modalities fixed by decree of the minister in charge of the economy "; As regards the electronic signature of the electronic procurement documents, the Ministerial Decree of 15 June 2012 on the electronic signature in public contracts specifies in II of its Article 2 that: "The signatory transmits, with the signed document, the instructions for carrying out the necessary checks. This manual contains at least the following information: / 1 ° The procedure for verifying the validity of the signature; / 2 ° The address of the provider's referencing website by the country of establishment or, failing that, the public data relating to the signer's certificate, which include, at least, the revocation list and the service provider's certificate electronic certification issuer (...) "; that Article 4 of the same decree provides: "To affix his signature, the signatory uses the signature tool of his choice"; that under Article 5 of the same decree: "I. - The provision of the procedure for the verification of the validity of the signature mentioned in II of Article 2 is free. It allows, at least, to verify: / 1 ° The identity of the signatory; / (...) 4 ° The unmatured and unrevoked nature of the certificate on the date of signature; / 5 ° The integrity of the signed file. / II. - These verifications can be carried out automatically, when the techniques used on the buyer profile allow, with the exception of verifying the identity of the signatory of the document. / III. - The economic operator using the signature creation scheme proposed by the buyer profile is exempted from providing the signature verification procedure "; Finally, Article 6.3 of the Rules of Procedure, which is included in the file of the judge hearing the application for interim measures and cited in the order under appeal, provides that candidates who use a signature tool other than that made available to them by the Contracting Authority for the signature of the documents transmitted, must allow "the free verification of the signature and the integrity of the document, transmitting concomitantly the elements necessary for the verification of the validity. / In this second case, the signatory indicates the procedure for verifying the validity of the signature by providing in particular the link on which the signature can be verified with an explanatory note in French ";
5. Considering that it appears from the documents in the file submitted to the judge of interim relief, first, that the electronic signature of the act of commitment of the SARL Olympe Service was rejected as invalid by the application of transmission applications submitted by the administration, on the grounds that the signed undertaking or signature had been amended, and that the administration has checked the validity of the application. signature after being requested by the company, as required by the provisions of article 6.3 of the consultation rules and article 2 of the ministerial decree of 15 June 2012 quoted above. above, the instructions for this verification; that thus the judge of the interim relief could not, without distorting the documents of the file which was submitted to him, to judge that the candidacy of the company had been dismissed without the administration making the necessary verifications of its signature; it follows that, without it being necessary to examine the other grounds of appeal, the Minister is entitled to request the setting aside of the order under appeal;
6. 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 interim proceedings initiated;
7. Considering that it follows from what has been said above that the checks carried out by the administration, after communication by the company of the instructions for use of the teletransmission procedure which it has chosen to retain, do not failed to establish the validity of his electronic signature, in particular the absence of modification of the act of engagement; that if the SARL Olympe Service produces two letters from the company Chambersign, certifying authority of its electronic signature, attesting the "un-expired and not revoked" character of the electronic certificate used, these attestations, which relate to the only validity of the certificate, do not are not such as to establish the integrity of the signed undertaking document or its lack of modification after the deadline for the submission of tenders; it can not therefore argue that it is wrong that the administration rejected for this reason as irregular its offer in application of the aforementioned provisions of Article 53 of the Code des Marches Publics; that, consequently, its request tending to the cancellation of the procedure of awarding the public contract at issue must be rejected, including its conclusions presented under the provisions of Article L. 761-1 code administrative justice; that in the circumstances of this case there is no need to grant the conclusions presented to the judge in chambers by the Defense Minister under the same provisions;
Article 1: The order of 9 April 2015 of the judge of the Court of Administrative Court of Marseille is annulled.
Article 2: The request made by SARL Olympe Service before the judge of the summary of the administrative court of Marseille is rejected.
Article 3: The conclusions presented by the Minister of Defense before the judge of the Court of Administrative Court of Marseille under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 4: This decision will be notified to the Minister of Defense, LLC Olympe Service, the company Celia Services, the company Derichebourg cleanliness and associated services and the Southern Office maintenance.
Summary: It follows from Articles R. 312-1 and R. 312-11 of the Code of Administrative Justice that the judge competent to rule on a pre-contractual summary presented on the basis of Article L. 551-1 is the judge of summary judgment the court in whose jurisdiction the contract is to be performed.
It follows from Articles R. 312-1 and R. 312-11 of the Code of Administrative Justice that the judge competent to rule on a pre-contractual summary presented on the basis of Article L. 551-1 is the judge of the court where the contract is to be performed.