Irregularity of a tender document for lack of an electronic signature

By judgement delivered on November 7th 2014, the French Public Supreme Court (Conseil d’Etat) ruled that in case of an invitation to tender, if the tender document is not completed by an electronic signature, the tender is irregular and is not to be taken into consideration by the awarding authority.

In this specific case, BearingPoint France submitted a tender via the inter-ministerial dematerialization platform (PLACE) without adding its electronic signature. Therefore, its offer was rejected by the ministry of finance and its content was not examined.

In this context, the Conseil d’Etat ruled that pursuant to articles 53, III and 48 of the Code of public procurement (Code des marches publics) the tender document could not be valid since it was not signed by a person dully appointed or authorized to enter into an agreement on behalf of the candidate before the submission deadline. Therefore, the Conseil d’Etat considered the lack of electronic signature to be a ground for inadmissibility of the tender.

This litigation also raised the question of the value of the acknowledgement receipt sent to all candidates via the dematerialization platform, which confirms that the tender has been submitted. The acknowledgement receipt contains a list of all submitted files, their size and the name of the signature token associated with each document. In these circumstances, the Conseil d’Etat considered that BearingPoint France was aware of the lack of an electronic signature and had enough time to remedy it.

In the absence of an automatic alert mechanism in case of an incomplete submission, candidates to French public procurement must pay attention to the content of their submission in order to rectify any and all potential errors.

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