Abstract

In the judgment of the National Appeals Chamber 2428/18, regarding the SHA-1 algorithm, the Chamber wrongly held that it was the contractor who should bear the consequences resulting from the obligations imposed on trust service providers with regard to the withdrawal of that algorithm from public use. In a manner contrary to the applicable regulations, the Chamber assumed that a qualified electronic signature using this algorithm is invalid, whereas, as set out in the EU regulations, it is only less secure. A judgement of 8 January 2019 (KIO 2639/18) contains two important conclusions for public procurement practice. First of all, the National Appeals Chamber stressed the obligation on contracting authorities to validate signatures on declarations submitted by economic operators, and secondly, it indicated the obligation for economic operators to meet all technical requirements in the process of affixing qualified electronic signatures. In the ruling of 18 October 2018 (KIO 2018/18), the National Appeals Chamber rightly held that the issue of the password to the ESPD should be clarified on the basis of Article 87 paragraph 1 of the PPL, as this information is being given in bid form. This judgment leads to an important conclusion that the contracting party, when executing transactions involving contractors (for instance requesting clarifications), should comply with the principle of proportionality, and not use measures that may have consequences that are disproportionate for the contractor. In addition, the judgement of the National Appeals Chamber of 14 January 2019 (KIO 2671/18) is of major significance, as the Chamber stated there unequivocally that an inefficient purchase platform preventing the submission of a tender offer constitutes grounds for invalidating the public procurement procedure under Article 93 paragraph 1 point 7 of the PPL. At the same time, the National Appeals Chamber decided that the contractor is the party obliged to prove that the platform did not function properly, which may be difficult in practice.