Key Benefits:
Minister of Economy, Finance and Industry,
Considering the Civil Code, including articles 1316 and 1316-1 to 1316-4;
Considering Decree No. 2001-272 of 30 March 2001, amended by Decree No. 2002-535 of 18 April 2002, adopted for the application of Article 1316-4 of the Civil Code and relating to electronic signature;
In view of Decree No. 2006-975 of 1 August 2006 on the Code of Public Procurement, including Articles 48-I and 56 of the annexed Code,
Stop it!
The procuring authority, which puts the documents of the consultation as well as the additional documents and information relating to formalized procedures available to economic operators on a computer network, specifies the terms and conditions of access to this network in the notice of public appeal to competition and allows the download of the regulation of the consultation.
To download documents other than the consultation regulations and the information mentioned in the previous paragraph, economic operators identify themselves. They indicate the name of the physical person responsible for their download and an e-mail address allowing the procuring authority, if any, to establish in a certain way electronic correspondence with the economic operator concerned.
In restricted procedures, the procuring authority, which provides for the electronic sending of the invitation letter to submit an offer to the selected candidates, indicates in this letter the possibility and modalities of downloading the documents and information referred to in Article 1.
The procuring authority may decide that certain elements that it considers sensitive or confidential and which appear in the consultation documents will only be transmitted to economic operators on paper.
Similarly, when some consultation documents are too large to be downloaded by economic operators, the procuring authority can transmit them on paper or electronic physical medium.
In the two cases mentioned above, the notice of public appeal to competition or the regulation of the consultation refers to the address of the service to which these elements may be requested.
The posting of the documents and information referred to in Article 1 by the procuring authority does not preclude the possibility for an economic operator to request that it be forwarded by mail, paper or, if the regulation of the consultation permits, on electronic physical medium.
The fact that an economic operator has consulted or obtained electronically the documents put online by the procuring authority is not an obstacle to his or her application and offer on paper or, if so permitted by the regulation of the consultation, on electronic physical support.
Electronic physical media used for the transmission of documents and information by the procuring authority or for the transmission of applications and offers by economic operators are chosen, by the procuring authority, in a file format widely available.
Nominations and undertakings, transmitted electronically or sent electronically, are signed by the economic operator by means of an electronic signature certificate, which guarantees the identification of the candidate.
The categories of signature certificates used to electronically sign must be, on the one hand, in accordance with the intersectoral security repository and, on the other, referenced on a list prepared by the Minister for State Reform.
The cross-sectoral security repository and the list of categories of electronic signature certificates mentioned in the previous paragraph are published in electronic form at http://www. entreprisess.minefi.gouv.fr/certificats/.
Electronic certification service providers may request the registration of a category of electronic signature certificates on the list referred to in section 6. In this case, they first request recognition by the Minister for State Reform of the conformity of this category of electronic signature certificates to the cross-sectoral security repository.
To this end, e-certification service providers produce all useful documents to attest to the compliance of the category of electronic signature certificates proposed to the cross-sectoral security repository.
The procuring authorities and procuring entities must accept as validly certifying their trade all categories of electronic signature certificates listed in Article 6.
Applications and tenders are presented separately.
In the case of an electronic consignment, they are presented in separate files, one containing the elements relating to the application, the other the elements relating to the offer.
In the case of an electronic physical consignment, they are presented on separate supports, one with the elements relating to the application, the other with the elements relating to the offer.
An acknowledgement of receipt mentioning the date and time of receipt shall be submitted by electronic or electronic physical support.
A candidate who performs both an electronic transmission and, as a backup copy, an electronic or paper-based physical transmission must submit that copy within the time limits for the submission of applications or offers.
This backup copy must be placed in a sealed fold with the readable mention: "back backup copy".
The backup copy may only be opened in the cases provided for in Article 11.
I. - When not accompanied by a backup copy, the applications and offers transmitted electronically and in which a malicious computer program is detected by the procuring power can be repaired.
The procuring power retains the trace of the program's maliciousness and, if it decides to try a repair, it also retains the trace of the repairs carried out.
II. - An electronic document relating to an application that has not been repaired or failed to repair is deemed to have never been received and the candidate concerned is informed of it under the conditions set out in section 80 of the Public Procurement Code. However, the procuring authority may decide to apply Article 52 I of the Public Procurement Code and request the economic operator to resubmit the document.
III. - An electronic document relating to an offer that has not been repaired or failed to repair is deemed to have never been received and the candidate concerned is informed of it under section 80 of the Public Procurement Code.
I. - When accompanied by a backup copy, the applications and offers transmitted electronically and in which a malicious computer program is detected by the procuring authority give rise to the opening of the backup copy.
The trace of the maliciousness of the program is retained by the procuring power.
II. - When an application or offer has been transmitted electronically, but has not reached the procuring authority within the time limits of filing applications and offers or has not been opened by the procuring authority, the procuring authority shall proceed to the opening of the backup copy, provided that it has reached it within the time limits of filing applications and offers.
III. - If the fold containing the backup copy is not opened, it is destroyed by the procuring power.
The backup copy opened pursuant to the provisions of Article 11 and in which a malicious computer program is detected by the procuring power can be repaired.
The procuring power retains the trace of the program's maliciousness and, if it decides to try a repair, it also retains the trace of the repairs carried out.
The provisions of Article 10 II and III are then applicable to the backup copy.
I. - In case of open tenders or open competitions, if an application is rejected electronically pursuant to Article 52 of the Public Procurement Code, the corresponding offer is erased from the files of the procuring power without having been read. The candidate is informed.
If the electronic transmission was accompanied by a backup copy, it is returned to the candidate without being opened.
II. - In case of open tenders or open competitions, when the application and offer are sent on electronic physical medium, if the application is not allowed, the support bearing the corresponding offer is returned to the candidate without having been opened.
This Order will enter into force on 1 September 2006 and will be published in the Official Gazette of the French Republic.
Done in Paris, August 28, 2006.
Thierry Breton
