Electronic signature

The provision of § 211 paragraph 5 of Act No. 134/2016 Coll., the Public Procurement Act, specifies electronic actions that the contracting authority must sign using a recognized electronic signature, unless the said actions are performed via an electronic tool or a data box, when the electronic does not require a signature. Other actions performed by the client 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. In other cases, a simple electronic signature will suffice.

According to the definition of an 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 that specific 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.

In addition, 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 a document after attaching a simple electronic signature also relativizes the possibility of proving the conclusion of a contract signed with a simple electronic signature.

In addition, the contracting authority often specifies 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.

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 appendices 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 added by the person who uses it) and proving the impossibility of changing the document after adding a simple electronic signature also relativizes the possibility of concluding a contract signed with a so-called 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 includes a recognized electronic signature, which is therefore often necessary for participation in the electronic procurement procedure.

Original or copy of the electronic document

Differentiating documents as to whether they are an electronic original or an electronic certified copy or a plain copy can also be an issue.

The Public Procurement Act and procurement documents often set requirements for the form of documents that must be followed, and a recognized electronic signature will usually be necessary in this regard.