The Public Procurement Act (the “Act”), which transposes the new EU Directives on public procurement, set an ambitious deadline requiring all public procurement procedures to be conducted entirely by electronic means by 1 July 2017 (the deadline under the Directives is 18 October 2018). This includes electronic submission of bids, electronic communication between contracting authorities and bidders, and the use of the national centralised e-tendering platform.
Unfortunately, the State was unable to meet this self-imposed deadline, mainly due to multiple appeals of the tender for the development of the e-tendering platform. Bids were received in May 2017 and the Public Procurement Agency is currently reviewing and assessing the offers, but fully developing and commissioning the e-tendering platform is expected to take between 12 and 36 months after the award.
As such, compliance with certain provisions of the Act is currently impossible given the present lack of an e-tendering platform.
The Public Procurement Agency has stated that public authorities are not obliged to conduct e-tenders until the centralised platform is ready; the deadline for launching the e-tendering platform will be postponed to 18 October 2018 by legislative changes and all currently started public tenders will not be deemed illegal. However, this response is by no means binding; the deadline provided in the Act has not yet been amended.
The uncertainty over how authorities will respond to future failures to comply with the Act is concerning – tenders are vital to give the public sector the supplies and services it needs to function properly. At the same time, the impossibility of compliance with the current law should excuse any formal breaches thereof. Despite this, contracting authorities should still do their best to comply with the Act’s current requirements, particularly electronic communication with bidders, which is already largely computerised, in spite of the inability to electronically submit tenders.
It is currently unclear if the Public Procurement Agency will allow contracting authorities to use other electronic tendering tools until the centralised platform is up-and-running, but following the above rationale, the answer would likely be positive.