The Public Procurement Office’s position on power of representation to file the ESPD

The Public Procurement Office has announced its standpoint on the form of the power of representation to sign an electronic ESPD. The ordinary written form is sufficient.

New provisions came into effect in mid-April on filing the ESPD in public procurement proceedings. In public procurement proceedings of a value exceeding the EU thresholds, the ESPD can only be filed electronically with a qualified electronic signature. This will cause both contracting authorities and contractors many practical problems. Although this switch to electronic handling of public contracts is intended to simplify procedures and reduce costs, initially it has meant an increase in formalities and costs. A qualified electronic signature is provided by trusted suppliers for a fee.

It is not surprising that contractors, especially SMEs, do not welcome the new requirements. Even when they have the electronic signature, the form of the file sent to the contracting authority is not clear.

Legal practitioners have added to the concern, discussing on professional fora who might have the authorisation to sign the electronic ESPD, and in what form. It has been remarked that the authorisation to sign the ESPD can only be granted in electronic form. This is clearly incorrect, but it only took a few respected practitioners questioning the effectiveness of the written form of authorisation to sign the ESPD for some contracting authorities to adopt that formalist view in newly announced procedures. They included a clear requirement in the proceedings documentation that authorisation to sign the ESPD has to be in qualified electronic form as well, or demanded authorisation in electronic form in notices to contractors requesting additional information or documents for an application or bid.

Explanations submitted on behalf of clients that there were no grounds for such expectations fell on deaf ears. Unfortunately, contracting authorities took a blinkered, but also practical view, that anything written in the TToR is a requirement. They did not perform their own interpretation of the implications of the new laws. At the same time, the Public Procurement Office did not pick up on the problem and did not publish a legal opinion on the subject. Perhaps the Public Procurement Office saw the issue in the same simple terms as I did.

The Polish Public Procurement Association posted on its website the response given by the Public Procurement Office to a query concerning the form of authorisation to file an ESPD (6 August 2018, UZP/DP/O/026/500(9)18/RS). The query put to the President of the Public Procurement Office was straightforward: what is the form required for authorisation to file an electronic ESPD in electronic form with a qualified electronic signature? The response was also straightforward: the same form applies as prior to 18 April 2018.

The Public Procurement Office pointed out that the amendment to the Public Procurement Law, which was the first step in a switch to electronic handling of tender contracts, did not affect provisions on the form of authorisation applicable in public procurement proceedings. The Public Procurement Office stated at the same time that Art. 99(1) of the Civil Code, which requires that the authorisation to perform an action for which a special form is stipulated has to be in the same form as the action, does not apply. This is because filing the ESPD is not a declaration of intent, but an inextricable element of the bid. The bid contains a declaration of intent made to the contracting authority, and the bid is filed in written form. The ESPD is only a peripheral declaration that does not have a separate goal or separate legal significance.

Does this mean that authorisation to sign the ESPD is still granted in the ordinary written form, and is this reason to feel relieved? Actually not.

On 18 October 2018 a new law will come into force under which bids and requests to participate in public tenders of a value exceeding the EU thresholds must be in electronic form to be valid. They have to be signed with a secure electronic signature verified using a valid qualified certificate. This means that the bid is filed electronically. The bid contains a declaration of intent made by the contractor, and therefore the conclusion reached by the Public Procurement Office does not apply to authorisation given to file a bid in electronic form.

The Public Procurement Office will soon have to respond to queries concerning the form of power of representation under the new rules on electronic tender contracts. One can only hope that the office provides a better statement of reasons. When responding to a question about power of representation to file an electronic ESPD, the Public Procurement Office did not address the essence of the problem, and created a new problem that will soon affect contactors when filing electronic bids.

The essence of the problem is that the electronic form is not a qualified form in relation to the ordinary written form. The switch to electronic handling of procedures is a purely technical matter. This is discussed here, although there are probably more arguments supporting my viewpoint.

The Public Procurement Office needs to publish a legal opinion on this subject. The Public Procurement Office did not intend to enforce a rule that power of representation in electronically conducted proceedings (in which bids are in electronic form) must be in electronic form. There is still time to resolve this issue before a legal query becomes a real problem and an opportunity to increase the number of formal barriers where the idea was to simplify matters for everyone.

Anna Prigan, legal advisor, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners