Electronic procurement of public contracts
JUDr. Jakub Vozáb, PhD.
19.01.2023
Looking for a reliable partner and legal counsel to acompany you on the way of electronic procurement of public contracts in the Czech Republic and Slovakia?
Do you need a representative with extensive experience, proofed fine references and technical skills including the right electronic signature to proceed?
We are LAWYERS and we represent our clients in electronic procurement both legally and technically.
As of 18 October 2018, electronic procurement of public contracts is mandatory in the Czech Republic in accordance with Act No. 134/2016 Coll., on the award of public contracts, whereby contracting authorities are obliged to use certified electronic tools listed in the List kept by the Ministry for Local development in accordance with Decree No. 260/2016 Coll., on the establishment of more detailed conditions regarding electronic tools, electronic actions in the awarding of public contracts and the certificate of conformity.
One such electronic tool is, for example, the National Electronic Tool (NEN), which is mandatorily used by members of the government and heads of other central administrative offices and their subordinate bodies and organizations for contracts with an estimated value exceeding CZK 500,000 excluding VAT. However, there are a number of other certified electronic tools that can be used by other public sector contractors, such as E-ZAK or JOSEPHINE.
Pitfalls of e-procurement
Electronic signature
Provisions of § 211, paragraph 5 of Act No. 134/2016 Coll., on the awarding of public contracts, specify electronic actions that the contracting authority must sign using a recognized electronic signature, unless the said actions are performed by means of an electronic tool or a data box, when the electronic signature is not required. Other actions performed by the contracting authority outside the electronic tool or data box can only be signed with a simple electronic signature.
As far as the supplier's electronic actions are concerned, it can be concluded that, analogously to the case of the contracting authority, actions performed via an electronic tool or a data box do not need to contain an electronic signature at all. In other cases, a simple electronic signature will suffice.
According to the definition of a (simple) electronic signature set out in Article 3 point 10 of Regulation No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust-building services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS ) can be considered as a (simple) electronic signature any data in electronic form that is attached to other data in electronic form or is logically connected with them, and which the signer uses to sign.
However, court practice is much more complicated and the use of a simple electronic signature cannot be recommended as a sufficient form of signing. As a rule, the courts require proof that the given electronic signature was attached to the electronic document by the respective person and that the content of the given document has not changed and could not have changed since then. This will usually be impossible in the case of a dispute with a simple electronic signature.
Further the contracting authority usually prescribes obligatory
Electronic contract conclusion
The contract itself between the contracting authority and the supplier should also be concluded in electronic form. This can be a problem for large contracts including annexes or attachments in a format that does not support direct electronic signature insertion.
Furthermore, the problem of proving the authenticity of a simple electronic signature (that it was attached by the person who uses it) and proving the impossibility of changing the document after attaching a simple electronic signature also relativizes the possibility of concluding a contract signed with a simple electronic signature.
In addition, the contracting authority often stipulates the formal requirements of communication and submitted documents, including the draft contract, in the procurement documentation, which often also includes a recognized electronic signature, which is therefore often necessary for participation in the electronic procurement procedure.
Original or copy of electronic documents
Differentiating documents as to whether they are an electronic original or an electronic certified copy or a plain copy can also be a problem.
The Public Procurement Act and procurement documents often set requirements for the form of documents that must be followed, and a recognized electronic signature in this regard will usually be necessary.
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