As of 1 April 2018, applicants in tender procedures must submit the European Single Procurement Document ("ESPD") in electronic form using a template provided by the European Commission.
The obligation to provide the ESPD in electronic form applies to all tender procedures regardless of when the procedure was opened. Thus, all ESPDs submitted on or after 1 April 2018 have to be in electronic form in accordance with article 67, para 4 of the Public Procurement Act ("PPA"). Recently, the provision of the PPA has come under the spotlight regarding the specifics of the submission. Below we highlight few key points on this topic:
The electronic form of the ESPD (eESPD) is not defined by the type of signatures used, but on the basis of its being stored electronically (not on paper). Thus, the eESPD is an electronic document and as such it must be properly signed upon submission of the tender application.
Signing of the eESPD
To validly sign an electronic document (in this case eESPD) and present it in original form to the contracting authority, the legal representative/s of the respective applicant and any other person/s exercising control over the applicant's activities, must sign it by way of electronic signature ("e-signature"). There are different types of e-signatures and if the contracting authority has not specified the type of signature in the tender documents, the applicant could use a qualified electronic signature issued by an approved provider. The qualified e-signature has the equivalent legal effect of a handwritten signature. The lists with the trusted qualified e-signature providers by country are published on the web site of the European Commission.
Further, there are two types of qualified e-signatures:
- Qualified Natural Person Signature Certificate: the certificate is issued to a natural person ("Holder") and may be used for personal identification for Internet applications, financial transactions, secured and encrypted communication, electronic correspondence, electronic document signing, making legal statements, authentication and data encryption activities; and
- Qualified Delegated Signature Certificate: the certificate is issued to a natural person and contains information about a legal entity that has delegated authority to the Holder and may be used for personal identification for Internet applications, financial transactions, secured and encrypted communication, electronic correspondence, electronic document signing, making legal statements, authentication and data encryption activities.
Generally, the preferred form for use of the qualified e-signature for a company's purposes is the Qualified Delegated Signature Certificate. However, if there are no specific requirements of the contracting authority and the natural person is a representative of a few companies within a group of companies, then the Qualified Natural Person Signature Certificate would be more convenient and could also be used.
Ongoing tenders and timing issues
If the deadline for submission of applications for ongoing tenders is approaching and the applicant does not have sufficient time to obtain the qualified e-signatures, it may file the application in hard copy or with the partially signed eESPD (with only a few of the qualified e-signatures). In such case, when reviewing the application, the commission of the contracting authority will/should find an inconsistency in the application and should instruct the applicant to provide a corrected application (signed with qualified e-signatures) within 5 business days. The applicant could use the time between the filing of the application and the receipt of the instruction from the commission to obtain the necessary qualified e-signatures.
By Stefana Tsekova, Local Partner and Dimitar Kairakov, Intern, Schoenherr