Judgment of the Supreme Administrative Court: Public Procurement | Eletronic Signatures on Proposals
It was published, on 25 November 2021, the Judgement of the Supreme Administrative Court (Proc. no. 0210/18.4BELLE) that standardizes jurisprudence regarding the matter of whether it is necessary, under Article 54.º, no. 5 of Law no. 96/2015, dated 17 August, that each document of a proposal inserted in an electrotonic platform is individually electronically signed.
In effect, there were two conflicting views: a judgement from the Southern Central Administrative Court that decided that the answer to that question should be negative, and a judgement from the Supreme Administrative Court that decided differently.
The Supreme Administrative Court decided to standardize jurisprudence the following way: “The submission of a proposal in a digitally signed PDF document that combines multiple documents that are not individually signed does not comply with the requirement of an individual signature on each document imposed by Article 57.º, no. 4 of the Portuguese Public Procurement Code and Article 54.º, no. 5 of Law no. 96/2015”, confirming this court’s previous judgement.
In support of its decision, it is mentioned that the solution of the Southern Central Administrative Court is hard to back, considering the literal element of the norm, that expressively establishes that all documents of the proposal must be signed by the bidder or its representative. The Supreme Administrative Court found that the legislator did not find it necessary to safeguard the possibility of all documents being combined in one single PDF file electronically signed, therefore decided that while the Southern Central Administrative Court’s solution warrants compliance with the material requirements of Article 57.º of the Portuguese Public Procurement Code, it does not warrant compliance with the formal requirements.
Judge Carlos Luís Medeiros de Carvalho’s voted against the decision, mentioning that it is not possible to compare all documents being combined in a single PDF file with documents being stored in a ZIP file. The referred judge believes that, when the signatory electronically signs a PDF file, he is assuming, unequivocally, its authorship, therefore multiple signatures are just a repetition of acts. The judge also calls upon the favor participationis principle, that determines that, in case of doubt, the interpretation of the law that favors the admission of bidders and their proposals shall prevail.
To access to the entire wording of the judgement (link).
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