Tender documents in electronic form – yes or no?

While reviewing the current case-law of Regional Courts in cases involving complaints lodged against the decisions of the National Board of Appeal, I came across a very interesting ruling of the Regional Court in Kalisz of 26 March 2015. The ruling was issued upon the complaint of the Chairman of the Public Procurement Office against the decision of the National Board of Appeal of 5 November 2014.

Wrongful exclusion of the Contractor

In the case in question, the Contracting Authority excluded the Contractor from public tendering after calling the Contractor to supplement relevant (original) documents in paper form. The Contractor furnished the documents by fax and email with a secure electronic signature verified by a valid qualified certificate.

The National Board of Appeal upheld the position of the Contracting Authority and dismissed the appeal by the Contractor – in its justification, the NBA stated that the Contracting Authority was entitled to limit the form in which the required documents were to be submitted.

The Contracting Authority is not entitled to determine the form of supplemented documents

This decision was objected by the Regional Court in Kalisz. In its ruling, the Court emphasised the fact that the Contracting Authority, in calling the Contractor to supplement the documents confirming fulfilment of conditions for participation in the tendering procedure, may not limit the form of such documents to hard copies (paper form). What is more, the Contractor may submit such documents in electronic form. Thus, the exclusion of the Contractor by the Contracting Authority and the position of the National Board of Appeal have no justification.

Moreover, the Regional Court confirmed that the Contracting Authority was entitled to demand the original document or a notarised copy thereof only if the copy submitted by the Contractor was illegible or there were doubts as it its authenticity. However, such requirement may be placed by the Contracting Authority only after it has reviewed the submitted copy and not prior to its submission by the Contractor.

The Contractor shall decide on the form of supplemented documents.

In accordance with the contents of § 7 of the Regulation of the Prime Minister of 19 February 2013 on the types of documents submitted, the Contractor is entitled to decide on the form of documents supplemented by it upon the request of the Contracting Authority, with regard to documents confirming fulfilment of conditions for participation in the tendering procedure. The Contractor may submit such documents in paper or electronic form and the Contracting Authority is not authorised to limit such form.

For reference, in accordance with § 7 of the abovementioned Regulation, documents may be submitted in the original or in the form of copies authenticated by the Contractor. And in the case of electronically submitted documents, they have to be accompanied by a secure electronic signature verified by a valid qualified certificate.