SmartTender lawyers

One of the most popular subjects of appeal in public procurement is the use of electronic signatures. Over the past six months, the AMCU's practice on some issues has changed, somewhere in favor of the complainants, and somewhere the opposite. We invite you to find out from SmartTender's lawyers what the situation is today, when it is appropriate to file a complaint, and what mistakes can lead to your disqualification.

Is the Requirement to Use QES Discriminatory?

Every day we meet with cases when suppliers are disqualified for the absence of a QES on a tender offer, although such a requirement was indicated by the customer in the tender documents (hereinafter – TD). Some participants in response file a complaint, referring to the fact that they can use the IES until March 5, 2022, and call the requirement to use the QES discriminatory. However, AMCU's practice on this issue is already clearly defined: the IES cannot be considered an analog of the QES. And since everybody can get a qualified signature in any AKCA, the requirement is not discriminatory.

Therefore, remember: if the customer writes in the TD that participants can use an electronic signature (without specifying what kind of signature should be), the suppliers can sign their proposal with the QES or IES. If the customer writes a requirement to use the QES, then the supplier is obliged to use the QES.

24 Hours for Correction: Does This Apply To Electronic Signatures?

Decision No.8933-р/пк-пз dated 04/23/2021

In the UA-2021-01-22-009324-b procurement, the complainant noted that when checking the winner's electronic signature superimposed on the bid, it was found that the type of the private key carrier is unprotected, signature type is improved. Although in the conditions of the TD, the use of a QES was required.

The situation is interesting in that before the deadline for submitting the proposal, it was the IES that was imposed and not the QES. But the customer at the qualification stage gave the participant 24 hours to correct the error, and he uploaded the documentation signed by the QES.

However, the complainant emphasized that the tender offer is documents submitted before the deadline for submission. During this period, the IES was imposed, therefore, it should be considered and, accordingly, is the reason for the disqualification of the participant. Despite the customer's explanations, the AMCU board satisfied the complaint and ruled that the proposal did not contain a QES.

Today we meet a lot of similar appeals, and the AMCU always clearly refers to the explanation of the Ministry of Finance. If the requirements say about the QES, and the participant did not use it, this is a 100% disqualification and does not qualify for correction under any circumstances.

Disqualification of an Individual Entrepreneur for Using the Signature of an Individual

Decision No.10794-р/пк-пз dated 05/17/2021

The next interesting practice concerns the QES of individual entrepreneurs. Roughly since the fall of 2020, for several months there have been such precedents: a participant – a legal entity filed a complaint against a participant – an individual entrepreneur for the fact that it is written in the key that he is an individual and not an individual entrepreneur. The AMCU satisfied the complaint, and such suppliers had to be disqualified. Since most AKCA indicated in the keys "an individual", and not "an individual-entrepreneur", in this way legal entities easily eliminated all competitors – sole proprietorship.

In procurement UA-2021-04-02-002976-b, the participant filed just such a complaint. However, since May 2021, the AMCU collegium has completely changed its position to such cases, referring to an additional clarification from the Ministry of Finance to the letter dated February 16, 2021: “Since the Law does not distinguish individual entrepreneurs as a separate category of users of electronic trust services, such users can use the signature of an individual". Accordingly, this complaint was dismissed.

And although the participants continue to file complaints against the signatures of the individual entrepreneurs, now the AMCU collegium consistently rejects them. Therefore, we do not recommend filing complaints in such cases, and if the customer disqualifies your proposal because of such nuance, be aware of this fresh practice.

Does an Authorized Person of a Participant Have the Right to Use a Personal Signature of an Individual?

Decision No.8933-р/пк-пз dated 04/23/2021

This case also demonstrates a change in the practice of the AMCU board.

In UA-2021-01-22-009324-b procurement, the complainant noted that the proposal submitted by the participant was not signed by the QES of the participant/authorized person of the participant, because of which it should be rejected. The nuance was that the participant was a legal entity, but its director signed as the individual, and not as a representative of the company. In response, the customer noted that as part of the proposal, the supplier provided an order on the appointment of a person to the position of director and a copy of the Decision of the sole participant on the appointment to the position of director. Accordingly, in the opinion of the customer, the specified individual is a director.

Six months ago, there was a stable practice when the director could impose the signature of an individual, and this was not considered a violation. However, as we can see, the AMCU has changed its attitude to this issue as well. During the consideration, Collegium noted that the electronic signature was not applied by the authorized person, satisfied the complaint, and obliged the customer to reject such a participant.

Keep this practice in mind and carefully check the type of electronic signature when submitting a proposal.

How to Reduce the Possibility of Mistakes When Participating in a Tender?

If you want to increase your chances of winning, to be sure that your tender proposal is submitted correctly, or to appeal the requirements or decisions of the customer, we recommend you contact SmartTender lawyers for advice. To do this, just leave a request on this page.

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