Judgment of 9th November 2023 of the SAC (case 01033/22.1BELRA), Portugal
Article(s) in Directive 2014/24/EU: Art. 22 and 57
Topic: e-signature of offer; open tender; exclusion of tender; formality
Member State: PT
Court/rev. board: Supreme Administrative Court (SAC)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 57, 70 (2) and 72 (3), paragraph c) of the of the Portuguese Public Contracts Code (PCC), and articles 54, 68 (4) and 70 (1) of Law 96/2015, of 17th August (that regulates the availability and use of electronic public procurement platforms).
2. FACTS
In an open procedure, one of the excluded bidders challenged the award decision, arguing that the successful bidder had not signed electronically, one by one, each document requested by the contracting authority before their submission on the electronic platform. On the contrary, the signing only took place upon submission in the platform (it should be mentioned that, in Portugal, documents are submitted in a dedicated electronic procurement platform, and the law determines that two electronic signatures are required: each document should be signed locally in the bidder’s computer, and then there is another signature in the e-platform, which seals the offer). This bidder claimed that this obligation consisted of an ad substantia formality that, upon violation, should lead to the exclusion of the tender.
The first two instances decided for the violation of article 68 (4) of the mentioned Law, degrading, however, the formality into a non-essential one, since both the offer and all the documents had been signed, one by one, when they were submitted on the e-platform. It was considered, by both courts, that the authenticity of the bid and its documents, as well as its integrity and confidentiality, had not been harmed through such behavior.
Having lost on both first and second instances, this bidder appealed to the SAC.
3. JUDGMENT
The SAC followed this reasoning, determining that the two-signature obligation was totally unnecessary and redundant, since the documents were signed, upon submission, by the person legally entitled to bind the tender.
The Court also highlighted that the 5-day invitation for irregularity correction, determined by paragraph c) of article 72 (3) of the PPCC, was not applicable, since there was no irregularity to be supplied (both the bid and all the documents had been signed; they just did not have the two e-signatures required by law, only one of them).
Article 68 (4) of Law 96/2015, of 17th August (“upload of bids”) determines that “regardless of the provisions of the following number, when the tenderer uploads a file of the bid on the electronic platform, it must already be encrypted and signed, using a qualified electronic signature”. Article 64 (5) allows tenders to progressively upload files to the electronic platform, if they are encrypted, allowing permanent changes to the documents until submission.
On this matter, the Portuguese Administrative Procedure Code (approved by Decree Law 4/2015, of 7th January, determines, in its article 163 (5), paragraph b), that “the annulment effect does not occur when the purpose sought by the neglected procedural or formal requirement has been achieved by another means”. The “other means”, in the present case, would be the e-signature of the offer upon submission.
First, one must highlight that article 68 (4) is crystal clear, demanding two e-signatures from the tenderers.
However, all Courts, in this case, defend that the legislator’s intention, in article 68 (4), is to preserve the authenticity, integrity, and confidentiality of the offer. This is open to controversy. On face value, it seems that, for the legislator, those requirements are only fulfilled with two e-signatures – the first one being of such importance that it needs to be encrypted. But one may question this, inter alia, on the basis of proportionality. The 2014/24 Directive, for example, does not include this requirement in the references to e-signatures found in its article 22.
The e-signature of documents serves important purposes that need to be addressed in some form. It is each case’s circumstances that will determine whether the purposes are – or not – fulfilled. Portuguese law is demanding in this regard, with a seeming requirement for two e-signatures, although the reason for this is not entirely clear, which gives rise to a case law that tries to look at the specifics of the case and strike a balance between that requirement and the general principles, including equal treatment and proportionality.
Link to the original decision: https://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/f256e8eda283edd880258a67003396ce?OpenDocument&ExpandSection=1#_Section1
