Abstract

The digitisation of public procurement, namely the obligation to conduct procurement procedures using electronic means of communication, results in the necessity to create and use tools and software for exchanging data in electronic format. The contracting authority is obliged to provide such tools and must establish a platform for the exchange of such data, either on its own or through the services of another entity. Various legal constructions for performing this statutory obligation are available. First, the acquisition of a licence to software and hosting on another entity’s server, but without providing services related to the transfer or receipt of data by that entity or by another entity. Second, the acquisition of a service from a portal manager ensuring this type of data exchange. In this case, it is possible for the contracting authority to purchase a service involving the transmission and acceptance of data from the contracting authority and contractors (third parties within the meaning of the Civil Code), or to enter into an agreement to provide services exclusively for the benefit of the contracting authority and separate agreements with contractors. The method of performing contracts and the rules of liability are set out in the Act on the Provision of Electronic Services, the Civil Code – in particular the provisions of the contract of mandate – as well as the provisions of the PPL, which separately regulates, for example, the rules of access to data contained in submitted offers, declarations and documents.