Electronic procurement of public contracts
JUDr. Jakub Vozáb, PhD. 19.01.2023
We are LAWYERS and TAX ADVISORS focused on PUBLIC CONTRACTS.
We will guide you through the process of electronic tendering of a public contract, from the creation of an electronic profile to the evaluation of the offers.
|Phone:||+420 603 774 473|
Electronic procurement of public contracts
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.
Basic principles of public procurement
Each contracting authority is obliged to comply with the following basic principles when choosing a suitable supplier, in order to fulfill the principles of economy, efficiency and effectiveness and to support the competition:
Principle of transparency
The contracting authority must ensure that the procurement procedure is reviewable, in particular it must:
- Obtain and keep written documentation to a sufficient extent for the review of all actions of the contracting authority
- To clearly define in advance the criteria according to which the bids of tender participants will be evaluated
- Properly justify all decisions of the contracting authority
Principle of proportionality
The tender conditions (level of qualifications, etc.) must be appropriate to the nature of the public contract
Principle of equal treatment
The contracting authority is obliged to treat all suppliers in the same way during the preparation and awarding of the contract.
Prohibition of discrimination
The tender conditions must not prevent the participation of suppliers for reasons unrelated to the subject of the contract.
Principle of socially responsible procurement
The contracting authority must also assess what new job opportunities are associated with the supplier's offer, or how the offer takes into account the social inclusion of disadvantaged population groups, etc.
Principle of environmentally responsible procurement
Furthermore, the contracting authority must take into account the impact of the offer on the environment and strive for a solution that will contribute to sustainable development and eliminate negative environmental impacts.
Principle of prioritizing innovation
The contracting authority must strive for a technologically advanced solution, i.e. it is obliged to prioritize modern products, services and procedures.
How do we divide public contracts?
According to the subject of performance, we divide public contracts into supplies, construction works or services.
We further divide public contracts according to their estimated value (the exact value will be known from the rule only after the end of the procurement procedure, i.e. the estimated value is taken into account) into:
|Job Type||Order Value|
|Orders above the limit||=/> than the value according to Government Regulation No. 172/2016 Coll.|
|Orders below the limit||< than the limit for over-limit orders, but > than the limits for small-scale orders|
|Small scale orders||=/< CZK 2,000,000 in the case of supplies and services|
|=/< CZK 6,000,000 in the case of construction works|
This division of orders according to the expected value is particularly important for determining:
- What type of procurement procedure should be chosen (§ 52 and § 55 of Act No. 134/2016 Coll., Public Procurement Act)
- What procurement conditions must be chosen (§36 and §73 et seq. of Act No. 134/2016 Coll., Public Procurement Act)
- How to proceed when evaluating bids (Section 114 et seq. of Act No. 134/2016 Coll., Public Procurement Act)
As for small-scale contracts, they do not have to be awarded in the procurement procedure according to Act No. 134/2016 Coll., the Act on the Award of Public Contracts, however, it is always necessary to proceed in accordance with the above-mentioned basic principles. In practice, this often manifests itself in the way that contracting authorities proceed analogously as in the case of contracts awarded in accordance with the law, i.e. they also award small-scale contracts in the procurement procedure.
Pitfalls of e-procurement
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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|Phone:||+420 603 774 473|