Communication via email or fax as in Article 20 of Public Procurement Law may be used in public procurement procedures, i.e. in protection of rights proceedings, if contracting authority chooses such type of communication by quoting email or fax number in invitation for submission of bids or in tender documents, or if interested party, bidder, applicant or candidate quote it in the offer, application or request for additional information or explanation. Besides, if contracting authority, interested party, bidder, applicant or candidate deliver tender documents, additional information or explanation, offer, application, or request for additional information or explanation from an email address or via fax, it will be deemed that they have chosen communication via email or fax, and the said email address and fax number will be used to respond or deliver documents. The party that chose communication via email or fax and wishes to receive documents only during its working hours, has to state what it considers working day and working hours in the same document where it stated the email address or fax number for communication. In the opposite, it has to receive documents delivered this way every working day from 0.00 am till 12.00 pm. When a party in accordance to the above quoted choses communication via email or fax it has to, upon request of the party delivering documents and in accordance with provisions of the Article 20 of Public Procurement Law, confirm receiving of every document delivered to the chosen email or fax number, when this is necessary as a proof that the delivery took place. In the opposite, it is presumed that delivery took place, except the party that failed to confirm the receiving of document thus delivered manages to prove the opposite. Contracting authority that thus deliveres decision on awarding of the public procurement contract, on recognizing the qualification, on conclusion of framework agreement or bidder that thus deliveres the request for protection of rights or additional documents has to have confirmation of the receiving as a proof that documents were delivered. Explanation:
Article 20 Paragraph 1 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12, hereinafter: PPL) prescribes that communication in the public procurement procedure is conducted in writing, i.e. via mail, email, or fax. Therefore, besides mail as regular way of communication PPL leaves the possibility to communicate via email or fax, while Paragraph 2 of the same Article prescribes the condition that chosen type of communication has to be widely available, so that the interested parties wouldn’t be denied the possibility to participate in the public procurement procedure. The possibility to communicate via email or fax, according to Republic Commission, applies to protection of rights proceedings, bearing in mind that it represents the inseparable part of public procurement procedure.
Thus it ensues that there is a possibility to communicate in public procurement procedure, i.e. in protection of rights proceedings, via email or fax, and party wishing to communicate in such a way has to clearly express its preference, so that in each separate case it can be established without doubt that choice has really been made. This means that if the contracting authority chooses mentioned type of communication, it has to explicitly state this choice in the invitation for submission of bids or applications, in tender documents, but also the same applies to interested party, bidder, candidate or applicant, who have to state explicitly their communication preference in the document they deliver to contracting authority – request for additional information or explanation, offer, or application. This way the parties that are to communicate get familiar with the ways in which communication can be successfully conducted.
Apart from this, communication via email or fax will be deemed as preferred one in accordance with the Article 20 Paragraph 2 of PPL, if it is established without doubt that submission of mentioned documents has been done from a specific email address or fax number, even though these have not been explicitly quoted in the submitted documents. In such cases it can be considered that there is consent of the parties in the procedure to use these means of communication, as well as possibility to use them.
Communication in public procurement procedure, in accordance with the Article 20 Paragraph 3 of PPL, should be conducted in such a way that deadlines prescribed by PPL are respected and that to this extent when possible electronic means are used. In accordance to this, it is presumed that the party that in a previously described ways choses to communicate via electronic means, and both email and fax undoubtedly are electronic means of communication, has at its disposition the possibility to use them, and that they will be used with respect to the deadlines prescribed by PPL. Therefore the party that wishes to receive the documents submitted in such a way within its working hours, has to state that, which means that within the same document where it quotes the email address or fax number it has to give information concerning its working hours and days. In the opposite, i.e. if the working hours are not clearly stated, there will be the obligation to receive documents submitted by email or fax throughout the entire working day, i.e. from 0.00 am till 12.00 pm.
If any of the participants in the procedure has in one of the quoted ways undoubtedly chosen to communicate via email or fax, at the same time he took upon himself the responsibility to confirm receiving of each of the documents submitted to the email address or fax number. If he fails to confirm receiving of the documents, it will be presumed that documents were submitted. This presumption can be disputed, i.e. the party claiming the opposite can try to prove it. Therefore, the confirmation that the documents were received under the circumstances, presents the proof that they were submitted, in accordance with the provision of the Article 20 Paragraph 6 of PPL, which prescribes that if the document in the public procurement procedure has been delivered by contracting authority or bidder via email or fax, the party delivering the document is obliged to demand the confirmation of the document from the party to which document was delivered, and the party that received the said document is obliged to do so when it is necessary to have proof that delivery took place.
Based upon above said, it can be concluded that participants in public procurement procedure are free to choose the way they will communicate in public procurement procedure, and thus choosing the communication via email means the obligation to confirm reception of each document thus received accordingly. It is also deemed that if they chose this type of communication, they are in position to heedlessly conduct it via electronic means, and therefore failure to confirm receiving of a document submitted in the same way means assumption that delivery was done, with the possibility to prove the opposite.
This assumption, however, does not relate to the contracting authority who in such way delivered decision on awarding the contract, conclusion of framework agreement, acknowledgment of qualifications or suspending of the procedure, or to the claimant who chose this way to deliver request for protection of rights, or amendment of the request, as Article 108 Paragraphs 7 and 8 of PPL prescribe that contracting authority has to have confirmation of delivery of the mentioned decisions or proof that delivery was rejected, and in accordance with the Article 149 Paragraph 8 of PPL these provisions are applied to the submitted requests for protection of rights.