What does electronic signature mean?
The electronic signature is a technical method that ensures the identity of the signer and the integrity of an electronically transmitted document. In public procurement, the electronic signature plays an important role in digital bid submission, in signing contracts and in communication during the procurement procedure. The eIDAS Regulation (EU) No 910/2014 distinguishes three levels of electronic signatures.
The simple electronic signature covers basic forms of electronic identification, such as a scanned signature or an email signature. The advanced electronic signature is uniquely linked to the signer, allows the signer to be identified and is linked to the signed data in such a way that subsequent changes can be detected. The qualified electronic signature offers the highest level of security: it is based on a qualified certificate and is created with a secure signature creation device. Only the qualified electronic signature has the same legal status as a handwritten signature.
In procurement practice, many contracting authorities have relaxed the requirements for electronic signatures in recent years. On many procurement platforms, text form under Section 126b BGB (German Civil Code) is now enough, where the declaration is made in a document or in another way suitable for permanent reproduction in written characters and the person making the declaration is named. Whether a qualified electronic signature is required is stated in the respective procurement documents.
Relevance for bidders
Bidders must closely observe the requirements for the form of bid submission set out in the procurement documents. If a qualified electronic signature is required, its absence leads to mandatory exclusion of the bid. Companies that regularly take part in public tenders should therefore have the technical prerequisites for all signature levels.
Obtaining a qualified electronic signature requires registering with an accredited trust service provider and acquiring the corresponding hardware (signature card and card reader) or using a remote signature solution. Bidders should start this process well before their first bid submission, because issuing a qualified certificate can take a few days.
Legal framework
The legal basis for electronic signatures is the eIDAS Regulation (EU) No 910/2014 and the German Vertrauensdienstegesetz (VDG, Trust Services Act). In procurement law, Section 53(3) VgV (Public Procurement Ordinance) governs the permitted forms of electronic bid submission. The requirements for electronic form also follow from Section 126a BGB for the qualified electronic signature and Section 126b BGB for text form.