Legal and Technological Conditions in the Process of Electronisation in Communication between Parties in Public Procurement

Marian Cichosz

Abstract


Starting from 18 October 2018, public procurement procedures with a value equal to and exceeding the amounts specified in the secondary legislation issued pursuant to Article 11 (8) of the Public Procurement Law (i.e. above the so-called EU thresholds) are covered by the obligation of full electronic communication between the contracting authority and economic operators. Currently, a tender (or an application to participate in the procedure) in a procedure above the EU thresholds, to be valid, must be submitted only in electronic form (and not in paper form) and signed with a qualified electronic signature. The new legal situation resulted in the need to employ, both by economic operators and contracting authorities, new IT tools allowing them to achieve compliance in this regard. Meanwhile, many economic operators, especially medium and small ones, have not had sufficient IT infrastructure (especially software) as well as sufficient knowledge of the ways and methods of electronic preparation and implementation of public procurement processes. A provisional way to implement new solutions is to provide the miniPortal for e-Procurement, which allows for the safe submission of a tender or application for participation in proceedings and statements, including a European Single Procurement Document compliant with the requirements laid down in both the EU law and national law. However, this tool poses many technical problems, causing a number of disruptions in the public procurement process. The publication contains information stemming from the author’s and other practitioners’ direct observation of the communication between parties in the public procurement process.


Keywords


electronisation; public procurement; electronic signature; tender; secure electronic signature; means of electronic communication; e-PUAP; miniPortal

References


Act of 23 April 1964 – Civil Code (consolidated text 2019, item 1145).

Act of 18 July 2002 on the provision of services electronically (consolidated text 2019, item 123).

Act of 29 January 2004 – Public Procurement Law (consolidated text Journal of Laws 2018, item 1986 as amended).

Act of 17 February 2005 on the computerisation of the activities of entities performing public tasks (consolidated text Journal of Laws 2017, item 570 as amended).

Act of 22 June 2016 amending the Act – Public Procurement Law (Journal of Laws 2016, item 1020).

Act of 5 September 2016 amending the Civil Code (Journal of Laws 2016, item 1579).

Act of 20 July 2018 amending the Act – Public Procurement Law and the Act amending the Act – Public Procurement Law and certain other acts (Journal of Laws 2018, item 1603).

Decision of the Supreme Court of 10 December 2003, V CZ 127/03, OSNC 2005, nr 1, poz. 12.

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ EU L 2014, No. 94, p. 65 as amended).

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport, and postal services sectors, repealing Directive 2004/17/EC (OJ EU L 2014, No. 94, p. 243).

Judgement of the National Board of Appeal of 26 July 2018, KIO 1374/18.

Regulation of the Council of Ministers of 12 April 2012 on the National Interoperability Framework, minimum requirements for public registers and exchange of information in electronic form and minimum requirements for ITC systems Information (consolidated text Journal of Laws 2017, item 2247).

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 Directive 1999/93/EC (OJ EU L 257/73, 28.08.2014).

Regulation of the Minister of Development of 26 July 2016 on the types of documents which may be requested by the contracting authority from the economic operator in the public procurement procedure (Journal of Laws 2016, item 1126 as amended).

Regulation of the President of the Council of Ministers of 27 June 2017 on the use of electronic means of communication in the public procurement procedure and the provision and storage of electronic documents (Journal of Laws 2017, item 1320).

Serpina-Forkiewicz A., Elektronizacja – problemy prawne, „Przetargi Publiczne” 2018, nr 4.

Wiktorowski A., MiniPortal UZP – pierwsze doświadczenia, „Przetargi Publiczne” 2019, nr 1.

Wiktorowski A., Otwarcie ofert elektronicznych, „Przetargi Publiczne” 2018, nr 8.




DOI: http://dx.doi.org/10.17951/sil.2019.28.3.9-21
Data publikacji: 2019-12-21 14:52:16
Data złożenia artykułu: 2019-04-16 09:01:21


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