The Public Procurement Law was adopted on 11 September 2019 and, as for Polish legal conditions, it had a rather long vacatio legis lasting over a year. The topic has become relevant again, with new regulations, in force from 1 January 2021, significantly changing the public procurements landscape. The main change is that public procurements will obligatorily be organised electronically at every stage. There are certain exceptions to this rule.
The changes in this regard were introduced gradually, with some proceedings being conducted electronically as early as since 18 October 2018. However, this applied only to a small group of public procurement contracts with values at least equal to the EU thresholds. Now, proceedings below these thresholds – and the vast majority of them is like this – will also be held electronically.
What changes do the new provisions introduce?
The main change is the shift of the entire procedure being held in written form to electronic form. This is followed, for example, by the elimination of the obligation to open envelopes, and the new requirement to use electronic signatures.
The new regulations have been shaped in a manner analogous to the provisions concerning the EU thresholds. Pursuant to Art. 63 section 2 of the Public Procurement Law, in a procedure for the award of a contract or an invitation for tenders with a value below the EU thresholds, the bid, application for admission to tender procedure or in an invitation for tenders, declaration, referred to in Art. 125 section 1 [Declaration of the contractor on not being excluded and meeting the conditions for participation in proceedings or the selection criteria], in order to be valid, shall be made electronically or in an electronic form bearing a trusted signature or a personal signature.
Importantly, failure to comply with the requirement to conduct proceedings electronically will result in the proceedings being annulled.
Public procurements and electronic signature
The difference between public procurements with a lower value and those with a value at least equal to the EU thresholds is that the former option also allows for an electronic form using a trusted or personal signature. What, in turn, is the difference between these two types of signature? A trusted signature is an electronic signature that confirms the identity of a citizen by means of an electronic seal from the minister responsible for informatisation. No additional electronic tools are needed to use this option – all you need is a phone number or a bank account with e-banking option. And the personal signature is authorised by means of a certificate – its carrier is the special electronic layer of the new ID cards. In this case, a special reader is needed.
How is electronic form understood in the legislation? As indicated by the Civil Code, this involves making a declaration of intent in electronic form and affixing it with a qualified electronic signature. As of 1 January, all communication between the contracting authority and the contractor must be handled in this form.
It may seem that the obligation to conduct proceedings electronically will be inconvenient for those involved in minor public procurements – particularly because of the need for an electronic signature. However, there are companies that provide such services quickly and affordably (more details at: https://netvet.pl/podpis-elektroniczny/).
What’s coming next for the minor public procurements?
The limit for the proceedings to which the new provisions apply is PLN 130,000. Provisions on the so-called minor public procurements (i.e. with the value was between PLN 50,000 and 130,000) were removed from the Act. This means that for this group of public procurements there is no obligation to hold them electronically, so you will not need, for example, an electronic signature to participate. This does not mean, however, that such a form is prohibited; it will be up to the contracting party to decide how to communicate. It is important to note that even if public procurement procedure is held electronically, it is not necessary to use a qualified electronic signature or a personal signature.
Exceptions to the conducting of public procurement procedures electronically
The Act provides for exceptions to the newly introduced requirement. Oral communication is acceptable during negotiations and dialogue, but it must be properly documented. The catalogue of exemptions from the necessity of electronic communication is closed and is defined in Article 65 section 1 of the amended act. This catalogue includes situations where:
Due to the specialised nature of the public procurement, the use of electronic means of communication would require tools, equipment or file formats that are not generally available or supported by publicly available applications;
applications to handle file formats that are suitable for the preparation of tenders or responses to invitation, use file formats that cannot be handled by any other open-source or publicly available applications, or are covered by a licence and cannot be made available for download or remote use by the contracting authority;
the use of electronic means of communication would require the contracting authority to acquire specialist office equipment;
contracting authority requires the submission of a physical model, scale model or specimen which cannot be transmitted by electronic means;
it is necessary due to a breach of security of electronic means of communication;
it is necessary to protect particularly sensitive information, which cannot be adequately guaranteed by electronic means of communication or by other tools or devices which are publicly available to contractors or which would have to be made available by the contracting authority;
the contract is awarded and the invitation for tenders is organised by a foreign service post of the Republic of Poland within the meaning of the Foreign Service Act of 27 July 2001 (Official Journal of 2020, item 1854) in a third country which is not a member of the European Union and with which the European Union has not concluded an agreement on mutual recognition of trust services as referred to in Art. 14 of the exclusion of the application of provisions of this Act to public procurements or invitations for tenders relating to defence and security which are subject to a specific procedure Section 1 of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing the Directive 1999/93/EC (Official Journal of the European Union L 257 of 28.08.2014, p. 73), and the value of that public procurement or invitation for tenders is below the EU thresholds.
Where can the proceedings be held?
It is worth adding that the choice of electronic form does not mean that the procedure can be carried out using any electronic tool at each stage. As the Act indicates, communication tools should be non-discriminatory, generally accessible and interoperable, while tools used to submit tenders should ensure the integrity, authenticity and confidentiality of the data. A special e-platform (e-Zamówienia) was therefore created… which, however, was not released on time. Some of functionalities are already working, but the module allowing submission of bids and applications is still inactive. According to the announcement, it will be up and running by the end of March 2021. Does this mean that it is not possible to conduct procurement procedures until then? As Hubert Nowak, President of the Public Procurement Office, pointed out in an interview for “Rzeczpospolita”, conducting proceedings is possible using MiniPortal, which was modernised at the end of the year, adjusting it to the new procurement law, including taking into account suggestions of the users. It will be discontinued over time, but all proceedings initiated using it will be continued there until they are completed. 1
The purpose of the new legislation is to reduce the so-called paperwork. It seems that, by a “happy” coincidence, the legislator has managed to introduce the amendment at the most favourable time – just when the pandemic has proven to us that the digitalisation of services and procedures is nowadays a sine qua non condition for the efficient execution of proceedings.
Endnotes: 1 https://www.rp.pl/Firma/301109924-Prezes-Urzedu-Zamowien-Publicznych-Przy-wykonywaniu-zamowien-mozna-liczyc-na-wiele-ulatwien.html