The new Public Procurement Law is an expression of the desire to fully digitize public procurement. Pursuant to Art. 61 of the Act, communication in the contract award procedure and in the competition, including the submission of offers, requests to participate in a procedure or competition, exchange of information and the transfer of documents or statements between the contracting authority and the contractor, taking into account the exceptions specified in the Act, takes place using the means electronic communication.

At the same time, Art. 20 provides that the contract award procedure, subject to the exceptions provided for in the Act, shall be conducted in writing. In art. 7 point 16 of the Act, we read that writing should be understood as a method of expressing information using words, numbers or other characters that can be read and reproduced, including those transmitted using electronic means of communication. The justification of the act indicated that the phrase “using words, numbers or other characters” indicates that communication must be carried out in text form. Sound or visual messages cannot be included here. Words, numbers or other characters should be externalized in a visible form and in a way that enables their copying, e.g. in paper or electronic form. The concept of “in writing” cannot be equated with a written form of a declaration of will within the meaning of Art. 78 of the Act of 23 April 1964 – Civil Code (Journal of Laws of 2018, item 1020, as amended), hereinafter referred to as the “Civil Code”. Pursuant to the Act, a written document does not have to have a handwritten signature covering the content of the declaration.

With regard to offers, the Act still requires a specific form. In the contract award procedure with a value equal to or greater than the EU thresholds, the offer and the ESPD declaration shall be submitted in electronic form under pain of nullity. The conditions for maintaining the electronic form are set out in the Civil Code. As a reminder, in accordance with Art. 781 § 1 of the Civil Code, to maintain the electronic form of a legal transaction, it is sufficient to submit a declaration of will in electronic form and affix it with a qualified electronic signature. In turn in the procedure for awarding a contract with a value lower than the EU thresholds, the offer and the “initial” declaration (i.e. not to be subject to exclusion or meeting the conditions for participation in the procedure) shall be submitted, under pain of nullity, in electronic form or in electronic form bearing a trusted signature or personal signature.