Security, Form and Integrity of Data in Electronic Procurement Procedures

The article addresses some of the critical legal issues regarding the receipt and acceptance of electronic bids in e-procurement processes, especially in terms of security and form of contracts and bids, taking into account the objectives of e-procurement. The global challenges of implementing e-procurement are presented. The requirements of Article 22 of Directive 2014/24/EU on public procurement are addressed, in particular those stipulated by Article 22(3)(6), a crucial provision for the regulation of electronic procurement in EU Member States. Article 22(6) of Directive 2014/24/EU has not been transposed into the Slovenian legal system. The consequences of lack of the transposition of the provision into the Slovenian legal order are discussed. The requirements of Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) are also addressed, referred to in Article 22 of Directive 2014/24/EU. The eIDAS Regulation has not been implemented in practice, although it entered into force in 2014 and, with some exceptions, has been applied since 1 July 2016. In practice, the reference to Slovenian Electronic Commerce and Electronic Signature Act (ZEPEP) is still present in Slovenia, although it is almost entirely obsolete. Considering the absence of transposition or the implementation of the abovementioned EU regulations into Slovenian legal system, the obligation is analysed to electronically sign electronic tenders and applications to participate in electronic procurement procedures, as well as the consequences of the lack of electronic signature of tender documents in light of integrity of data and strategic efforts towards universalisation of digital business by default. The final section also outlines the responsibility of contracting authorities for the (non)functioning of the e-procurement systems that they employ. The purpose of the article is to raise questions and provide de lege lata as well as de lege ferenda answers.

Keywords: electronic procurement, electronic submission, electronic identification, electronic transaction trust services, integrity of data, opening up the EU internal market, advanced electronic signature backed by qualified certificate, qualified electronic signature, digital by default.