Power of attorney in electronic proceedings

Experience / 10.02.2020

The Law Firm’s team represented companies from the road construction sector that entered into a consortium agreement to submit a bid in a public tender.

In the course of the tender proceedings, the ordering party rejected the Clients’ bid, citing failure to meet the formal requirements of the power of attorney for the consortium leader. The case was significant, as the public procurement proceedings were conducted electronically, and the Clients, acting as part of a consortium, submitted a bid for the execution of construction works worth nearly PLN 94 million.

The provisions of the public procurement law require that in a situation where several entities apply jointly for the execution of a public task, the interested parties should appoint a joint proxy to represent them during the tender procedure. In such a situation, the power of attorney should be submitted in an appropriate form along with the bid. Since the value of the public contract in the case in question exceeded the EU thresholds, the power of attorney was to be drawn up in electronic form, i.e. with qualified electronic signatures. The consortium members granted the power of attorney to the consortium leader, the document of which was submitted with the bid to the ordering party. The power of attorney was accompanied by qualified electronic signatures of the consortium members, the correctness of which, however, the ordering party could not verify. As a result, the ordering party called the consortium members to supplement the power of attorney document. The Clients complied with the ordering party’s request by submitting the supplemented power of attorney, but their bid was nevertheless rejected. This is because the ordering party determined that the content of the supplemented power of attorney did not indicate that the consortium leader was authorized to act on behalf of the consortium as early as the date of submission of the bids, since the signatures of the consortium members were submitted after the deadline for submission of bids in the proceedings.

The Law Firm’s lawyers demonstrated in their appeal that the power of attorney was supplemented correctly, because in the case of supplementing deficiencies in a power of attorney granted in electronic form, it is not possible to provide a signature with a retroactive date, so the date on which the signature was supplemented should be considered binding, provided that it is clear from the content of the power of attorney that the attorney was authorized to act on behalf of the contractor already on the date of submission of the bid.

The National Appeals Chamber (NAC) agreed with the Law Firm’s lawyers, ordering the ordering party to cancel the action of rejecting the Clients’ bid. Thus, the contractors won the contract for the investment.