- The government published a draft Act obligating parties performing contracts awarded in public procurements to send invoices electronically.
- These solutions follow from EU legislation, heading towards full digitalization of such procedures.
- However, for the time being, the serious problem in Poland are not legal matters but absence of adequate IT infrastructure.
At the end of April this year, the government initiated legislative works on the Act on electronic invoicing in public procurement, aimed to implement in the Polish legal system the respective solutions enacted in 2014 by the European Union. The Act is to apply to procedures laid down in the Act – Public Procurement Law and in the Act on the concession contract for construction works. Although nowadays such solutions should not surprise anyone, experience shows that digitalisation of the public sector in Poland is progressing slowly and encounters major problems. That is a pity since modern technologies are there to improve the speed and efficiency of each procedure – including public procurement proceedings, both at the stage of selection of the contractor and performance of the undertaking.
New terms and obligations
The principal aim of the EU Directive of 16 April 2014 on electronic invoicing in public procurement is to facilitate international trade by standardization in the EU Member States of the terms of electronic invoicing at the stage of of performance of public procurement contracts. Therefore, EU legislation has developed a special standard to be followed by all such invoices. However – although the Polish legislator has already undertaken appropriate legislative works – the cited Directive has still not been implemented into Polish law. This time, however, the situation is to change.
To that end, the designers plan to introduce two new terms in the Polish legal system: “structured invoice” and “other structured document.” The former is to refer to an electronic invoice eligible for posting via a special platform. Beside the requisites set out in the Act on VAT (among others: date of issue, value of goods or services, amount of received remuneration), it will have to include information on the recipient of payment and particular invoice items, as well as indication of the contract awarded in public procurement from which the given transaction follows. On the other hand, by “other structured document” the designers mean an electronic document relating to performance of a public procurement contract. Also such documents will have to meet the conditions for transmission via the platform. In the draft Act’s justification, the designers indicated that by such documents one should understand, in the first place, a corrected invoice, a delivery order, a delivery notification, a receipt confirmation or a bookkeeping note.
If the proposed provisions enter into force, each contracting authority and contractor will be obliged to keep its own account on that platform. The authority responsible for the operation of the latter will be the Minister of Economy. Under the draft, each contractor will be entitled to send structured invoices via the platform, and the contracting authority will have to accept invoices sent in that form. In consequence, contracting authorities must adapt to the reception and processing of electronic invoices within 27 November 2018 – that is the date of entry into force of the proposed Act. However, the deadline is merely theoretical since the provisions obligating the Minister to launch a platform for the transmission of invoices are to enter into force as late as on 18 April 2019 – which is a date from which it will be technically possible for contractors to send electronic invoices. It is worth mentioning that yet another starting date – 1 August 2019 – has been provided for public procurement contracts whose value does not exceed EUR 30,000.
The Act is also supposed to enable transmission of electronic invoices between contracting authorities and contractors from different countries of the European Economic Area. For that purpose, the Minister of Economy joined the international association OpenPEPPOL seated in Brussels. The organisation, with the European Commission’s support, ensures communication between “European” public sector entities and their contractors. Obviously, the use of such solutions will be extremely beneficial in cases of “international” performance of public procurement contracts. In the first place, it will enable fast transmission of accounting documents between different European countries, and, which is even more important, significantly harmonize legal requirements in respect of their contents.
First signs of problems
Unfortunately, the history of introduction in Poland of new computerized systems in the public domain shows that the path from an idea to its implementation is long and tortuous. Everything seems to indicate that this will also be the case with electronic transmission of invoices in public procurement contracts. Electronic transmission of invoices is an element of a wider digitalization process of procedures relating to public procurement. The final deadline for the introduction of obligatory electronic communication in such proceedings will expire on 18 October this year, and although appropriate provisions have already been enacted, the declared E-Procurement Platform is still missing. According to the information provided by the Public Procurement Authority, it is likely that the full version of the platform will not be completed within the prescribed deadline. This gave rise to the idea to launch an E-Procurement Mini-Portal enabling partial implementation of the EU requirements.
For the time being, it remains to be seen if it will be possible to send structured invoices and documents via that service. It seems that this would be the best solution – first of all, it would not require development of a new computer system. One way or another, implementation of the reforms is inevitable. As a result, it would be worthwhile both for the public sector and parties potentially interested in performance of public procurement contracts to start preparing for the implementation of new solutions just now.