The development of information technology has changed the public procurement system. An amendment will finally be adopted requiring electronic communication between contracting authorities and potential contractors.
Mandatory use of electronic communications is only one of many solutions for electronisation of public procurement procedures. Other elements include dynamic purchasing systems and electronic auctions, already in place, and the new institution of the electronic catalogue.
The purpose of the changes is to streamline the process of awarding public contracts and improve the efficiency of procurement procedures.
Under the legal definition, email and fax are “electronic means of communication.” The bill to amend Poland’s Public Procurement Law provides for an obligation to publish contract notices and provide access to tender documentation using electronic means of communication. Applications and offers must also be filed in electronic form, and must bear a secure electronic signature to be valid. While a secure electronic signature is not a universal tool, the requirement to use one does not limit access to public procurement because anyone can obtain one free of charge.
Electronic communications are to be conducted via the “purchaser’s profile” platform, enabling preparation, accessing, forwarding and storing of electronic documents. The purchaser’s profile is to be an element of the e-Procurement platform, alongside the Public Procurement Bulletin and electronic auctions. Due to the lack of funding for this project, however, electronisation of procurement in Poland is to be implemented at the minimal level necessary to meet EU requirements.
Thus paper documents are to be eliminated in favour of electronic files.
The obligation to apply modern methods of communication is not absolute, and the act provides a list of exceptions. This form of communication would not have to be used when justified for technical reasons, when use of electronic communications requires the use of specialised devices, applications, programmes or formats, or it is not technically possible to transmit a document in electronic form. Moreover, the contracting authority may decide on traditional methods of communication for transmission of sensitive information, if the electronic means do not ensure adequate security.
Realisation of statutory goals
The bill provides that these changes would enter into force from 18 April 2017 for central authorities, and for other contracting authorities from 18 October 2018. So even if the bill is adopted soon, contractors will have some time to wait before contacts with contracting authorities are actually conducted through these electronic systems.
The long grace period is primarily intended to allow contracting authorities to make technical preparations, because introduction of mandatory electronic communications will require additional measures to be taken by both the contracting authority and the contractors.
Electronisation of the public procurement system will achieve its intended goal, i.e. expediting and streamlining the process of awarding public contracts, only if the right technical support is prepared. It should be stressed that the contracting authority bears the burden of ensuring that the platform enables communications with contractors in a non-discriminatory manner, not limiting contractors’ access to the procedure. In this respect, the EU directive stresses unification of equipment and desired formats across the entire market.
Electronic communications must also not violate other rules for tender procedures. First and foremost, the means adopted by the contracting authority must ensure that applications and offers remain secure until the offers are opened, and guarantee that the relevant information is accessible only by authorised persons. The contracting authority must also ensure the security of data and prevent unauthorised access to the platform.
The technical side is not the only thing if the efficiency of the public procurement system is truly going to improve. It also takes acceptance of new solutions. The grace period will allow contracting authorities and contractors to become accustomed to the new system. Contracting authorities in Poland tend to act conservatively, and prefer to follow the tested practices they have used for years. Introduction of entirely new solutions, such as electronic communications, will force changes and require contracting authorities to develop new methods of behaviour. Contractors will also have to place their trust in virtual means. Electronic communications are not the end, but just one element in a broader trend. The Ministry of Development is working on further electronisation, particularly in the area of electronic invoices. The act on this subject is supposed to enter into force in January 2018.
Serom Kim, Infrastructure, Transport, and Public Procurement & Public-Private Partnership practices, Wardyński & Partners