Digitalisation against the crisis
Public procurement is one of the biggest driving forces of the economy. Contract performance during the epidemic may be impeded, but ongoing public procurement proceedings should not be stopped just because people are currently working mainly at home.
Currently, the Public Procurement Office is encouraging contracting authorities to communicate with contractors by electronic means also in procurement procedures for public contracts with a value below the EU thresholds, where, at this point in time, bids are still submitted on paper rather than via electronic platforms and digitalisation is still being postponed.
Digitalisation of public procurement by definition was intended to streamline proceedings and reduce their costs. In procedures above the EU thresholds, all communication is already taking place in electronic form, with the use of a qualified electronic signature required to submit a bid or request participation. Obtaining such a signature requires some complication and cost. On the other hand, tendering platforms, including private ones, are unfortunately unreliable. Additionally, practising lawyers add their views on the subject of digitalisation, incorrectly linking the effects of technical solutions with legal regulations. It took us months to consider whether a signed scan of a bid is a valid bid, or whether an electronic signature affixed to a folder means that all the files in the folder are signed. We do know how to make life harder.
To use and to digitalise
However, over the last year and a half, we have already managed to become familiar with electronic procedures. They have become part of daily life for large projects, and, at least in my assessment, digitalisation is a positive trend by all means.
Today, the situation we find ourselves in demands us to draw maximum benefit from the boons of digitalisation. Since to the surprise of many, remote work of entire corporations is not only possible, but also fully effective, this model of functioning should be used in other areas, for the benefit of the economy. To survive the current crisis, the economy must be consistently driven by the financial resources mobilised by the state—the fifth pillar of the anti-crisis package announced by the Polish government. This means that public procurement should not be allowed to slow down. Secure solutions must be sought to enable procedures to continue for awarding public contracts.
Therefore, I fully support the recommendation of the Public Procurement Office that, in the current situation, electronic communication should apply to all correspondence in proceedings. The parties should exchange all information, certificates and statements electronically, or at least be able to do so—not only in proceedings where electronic communication is an obligation, but also in smaller national contracts.
The Public Procurement Office rightly points out that under Art. 38(4) of the Public Procurement Law, the contracting authority has the right to change the terms of reference to introduce into the proceeding electronic communications as an additional means. This is an indication for contracting authorities that have already started procedures for which the deadline for submitting bids has not yet passed. If the proceedings have so far been conducted in paper form, electronic communication should be the contractors’ right and not an obligation: they may not yet be ready to comply with qualified electronic signature requirements.
The position of the Public Procurement Office results from the fact that the manner of communicating between the contracting authority and contractors and the manner of submitting declarations in the procedure is an element of the terms of reference (Art. 36(1)(7)). Therefore, in the opinion of the office, changing the manner is subject to restrictions in the course of ongoing proceedings pursuant to Art. 38(4), i.e. it must be done before the deadline for submission of bids. Does this mean that advanced public procurement procedures conducted in the traditional way should be suspended only because the deadline for modifying the manner of communication has passed?
In my opinion, if the contracting authority introduces communication by electronic means during an ongoing procedure just after the submission of bids, there will be no possibility to accuse it of infringing the rules of procedure or the rights of contractors, if it announces the introduction of electronic communication accordingly and gives contractors sufficient time to adapt to this type of communication (in particular, adaptation of technical infrastructure).
Adjust the tender understanding
Legal science defines the process of awarding a contract under a tender as taking place on the basis of a tender understanding between the parties to the procedure: the contracting authority and contractors participating in the tender. This understanding means that the parties acknowledge that the proceedings will be conducted according to certain rules. In term of tender procedures, these are set out in the Public Procurement Law and in the terms of reference prepared by the contracting authority for awarding the particular contract.
The situation in which the parties to a tender understanding now find themselves, i.e. an objective impossibility to continue activities within the procedure due to an obstacle of an extraordinary nature affecting each participant, justifies amendments to the previously adopted rules. As in the case of force majeure during the performance of any other contract, the tender understanding should be adapted to the circumstances so that the procedure can be continued by all parties. For the sake of complete formal correctness, it can be demanded that each of the contractors participating in the tender understanding may be required to agree to a change in the manner of communication during the tender. It should be realistically expected that such consent will be given, as it gives each participant the opportunity to achieve the objective of the procedure, provided that the contracting authority specifies sufficient time to adapt to the new mode of communication.
Regarding the qualified electronic signature, I would like to point out that it is only necessary for proceedings above the EU thresholds. However, in proceedings below the EU thresholds, it would be worthwhile to introduce now a provision allowing for the use of a personal signature and a trusted profile, i.e. free electronic signatures functioning in our reality enabling verification of the author of the signature. It would be a shame if Art. 63(2) of the new Public Procurement Law (which will enter into force on 1 January 2021) had to wait to go into effect, as it could do so much good in the current reality. This section allows the use of both indicated electronic signatures in all proceedings below the EU thresholds.
The Public Procurement Office has already drawn to contracting authorities’ attention that they do not infringe the principle of public opening of bids by online transmission in which all contractors can participate. In my opinion, the Public Procurement Law would not be infringed even if negotiation meetings and meetings as part of the dialogue were moved online. The availability of video instant messaging is enormous, and its use is not complicated. We lawyers are also working remotely, meeting in videoconferences, transmitting court papers by email. And everything is working.
It seems to me that during the epidemic and forced isolation, we have stopped noticing the deficiencies and barriers associated with electronic procedures and now see them rather as an opportunity. I hope the parliament will also see this chance and resolve the problem of suspension of the National Appeal Chamber’s work through electronic meetings.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
