e-ESPD only!
Electronic procurement documents are coming. Starting 18 April 2018, the European Single Procurement Document (ESPD) will be available only online. Contracting authorities will have to include this requirement in all terms of reference while contractors will have to adjust to the new regulations.
Contractors participating in public procurement procedures will have to obtain a qualified electronic signature. Unfortunately the new law does not allow for the use of the free ePUAP trusted profile in procurement proceedings.
The Public Procurement Office has issued a reminder that in all proceedings commenced on or after 18 April 2018, the ESPD declaration may be filed only electronically using a qualified electronic signature. From the contracting authorities’ perspective, the easiest way to satisfy this requirement is for the terms of reference to mandate that ESPDs be filed via email. Thus, all contract notices and terms of reference will now have to include an email address and preferred format (.pdf, .doc, .docx, .rtf, .xps, .odt) in which contractors must submit their ESPD. These files will have to feature a qualified electronic signature and be encrypted using the method indicated by the contracting authority, with the encryption key attached.
The new regulations require contractors to have qualified electronic signatures provided by a qualified trust service provider listed in the relevant minister’s register maintained by the National Certification Centre. Contractors must also remember to encrypt the ESPD files in the manner indicated by the contracting authority and provide the encryption key in the request to participate or in the offer itself. The electronic ESPD must reach the contracting authority’s inbox before the tender submission deadline.
Along with the encrypted ESPD, the contractor must also indicate the tender proceeding (name and number) for which the document is being submitted, and provide the contractor’s details so that the subject of the message can be determined without decrypting the file.
Should the ESPD require further clarifications or additions, the contractor’s response to the contracting authority’s demand should include the electronic version of the ESPD along with a secure qualified electronic signature. However, ESPDs filed in response to a demand issued under Art. 26(3) of the Public Procurement Law need not be encrypted.
The Public Procurement Office website (in Polish) contains instructions for filing electronic versions of the ESPD, as well as sample terms of reference that may be used in drafting documentation for public procurement proceedings starting 18 April 2018.
Anna Prigan, legal adviser, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
