What is the situation regarding power of representation to file the electronic European Single Procurement Document (ESPD)?
Can an ESPD be signed by a contractor representative appointed for a tender using their certified electronic signature, or do persons listed in the relevant register as representatives of the contractor now have a new obligation, to sign an ESPD? Is this measure by the legislature a restriction of competition in tenders?
In public tender procedures that commence after 18 April 2018 it is compulsory to sign the European Single Procurement Document (ESPD) using a qualified electronic signature. Article on the obligation to file the ESPD electronically can be found on our portal here. Polish Public Procurement Office guidelines, discussed in that article, might aid contractors dealing with the new obligation in current tender procedures.
The Public Procurement Office guidelines do not cover all of the concerns that contractors may have regarding filing the electronic ESPD. In particular, they do not take into account that contractors are rarely represented in tender procedures by persons listed as authorised representatives in the relevant register. Usually, contractors appoint a representative for this purpose to act for the duration of a particular tender, or a representative who always represents the contractor in tenders as part of their duties. The level of formalisation of a tender procedure also means that a level of professionalisation is also adhered to in tenders: documents submitted in tenders are drafted and signed by persons involved in the tender procedure in question. This is usually a representative, and not the CEO of the company.
The requirement to hold a qualified electronic signature issued by an entity listed in the register held by the minister responsible for computerisation, maintained by the National Certification Centre, or on the trusted list of qualified trust service suppliers at European level, is something new and burdensome for contractors. A fee is charged for an electronic signature, and the signature has to be collected from the e-signature vendor in person. There is also the question of learning to use it. Electronic signatures have existed on the market in this form for more than ten years but are not widely used. They are usually used by accounts departments in dealings with government offices, and by professional representatives (lawyers). CEOs tend not to have them because their role is not performing operational tasks within the company.
Under Art. 99 (1) of the Civil Code, if a special form is required for a legal transaction to be valid, the power of attorney for that transaction must be issued in the same form. Does it follow that if an ESPD should be signed using a qualified electronic signature, the associated power of attorney should be signed using a qualified electronic signature as well? If someone is authorised to represent a contractor but does not have an electronic signature, does that mean that the person cannot authorise anybody to submit an ESPD in the requisite form on the contractor’s behalf? Did legislators consider these implications when making use of an electronic signature in tenders compulsory?
Art. 180(4) of the Public Procurement Law has been in effect for a long time. This provision requires an appeal in public procurement proceedings to be submitted in writing or in electronic form with a qualified signature. Professional representatives often file appeals in electronic form, showing their authorisation in a power of attorney in writing. In accounting and legal matters, for a long time various declarations have been signed using a qualified electronic signature, on the basis of written authorisation. Also, I have experienced cases, in proceedings before the National Appeals Chamber, in which I presented a power of attorney granted to a third party in writing, containing only authorisation to submit an appeal in electronic form with a qualified electronic signature. The appeal was signed by someone else in written form and was accepted by the National Appeals Chamber as submitted.
This is practice, but the currently applicable regulations are more important. It is true that Art. 781 of the Civil Code states clearly that a transaction performed in electronic form using an electronic signature is equal in status to a declaration of intent made in writing. Some writers say that a qualified electronic signature is equal in status to a declaration of intent made in writing, but that a declaration of intent made in writing is not equal in status to an electronic signature.
Meanwhile, the eIDAS Regulation ((EU) 910/2014) states clearly that a qualified electronic signature has the same legal effect as a handwritten signature (Art. 25(2)), meaning that this action has legal effect in the other direction as well. This regulation is directly applicable in Poland and takes precedence over national laws. In Polish legal writings, Dariusz Szostek (and others) interpret equal status of forms in this way (see Jacek Gołaczyński and Dariusz Szostek (eds.), Computerisation of Civil Procedure: Commentary, Beck 2016, pp. 94–95), and Grzegorz Stojek, commentary on Art. 781 of the Civil Code in Mariusz Fras and Magdalena Habdas (eds.), Commentary on the Polish Civil Code, Volume 1 General Section (Art. 1–125), WKP 2018).
The aim of Regulation 910/2014 (recital 49) is that the legal effect of an electronic signature should not be contested: “However, it is for national law to define the legal effect of electronic signatures, except for the requirements provided for in this Regulation according to which a qualified electronic signature should have the equivalent legal effect of a handwritten signature.”
In my view, electronic form is not a qualified form in relation to ordinary written form. I also believe that the new regulation is simply technical in nature. In proceedings instigated on or after 18 April 2018, the method is specified for submitting a declaration that can be submitted to a client solely in electronic form bearing a qualified electronic signature. This regulation does not change the rules on powers of attorney in public tenders, and in particular does not require a power of attorney to be in electronic form with a qualified signature. In my view, an electronic signature can be held not only by a person representing a contractor according to registration in the relevant register, but also by a representative appointed to represent a contractor in public tender procedures or to perform certain acts in that procedure, on the basis of a power of attorney in ordinary written form. Therefore an ESPD can be signed by a person holding written authorisation issued by a contractor. The legislature’s aim was not to hamper access to tenders, but to make organisational and technical changes streamlining the procedure. The first step is the electronic ESPD, and in October 2018 broader changes will be made.
Anna Prigan, legal adviser, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners