public procurement | In Principle

In public procurement proceedings initiated on or after 22 September 2023, contractors may again submit criminal record certificates according to the residence of the person referred to in the certificate.

At a conference on 30 May 2023, the Polish Public Procurement Law Association presented a report with calls for legislative changes to the Public Procurement Law of 11 September 2019. The act has been in effect since the beginning of 2021, and the experience acquired over two and a half years has allowed practitioners to draw some conclusions and formulate nearly 30 calls for amendments to improve the procurement procedures in Poland. In this article we will analyse one of the proposals.

The European Union has addressed the issue of the impact of third countries, from outside the EU, on the operation of the single market. Next year, the Commission will begin investigating sources of money giving foreign undertakings an advantage, including in public procurement procedures. Subsidised contractors will not get public contracts in the EU if awarding them a contract could disrupt the EU market.

One of the participants in the construction process carried out under FIDIC contract terms is the engineer, acting as the contract administrator. The engineer’s task is to take the necessary steps to ensure that the contract is performed correctly and on time. Among other things, the engineer can issue a determination on how to handle a matter. When can the engineer do this?

On 24 August 2022, without any grace period, Art. 15r1 of the COVID special act ceased to apply. In Polish public procurement, this means a repeal of the ban on deducting contractual penalties and claiming them from a performance bond, which had been in effect since 24 June 2020.

The contracting authority may require contractors to conduct a site visit when justified by the subject matter of the contract. Failure to participate in an obligatory site visit will result in rejection of a bid. Contractors who do not manage to attend the site visit should request a new date for the visit before submitting a bid.

What can a public procurement contractor do if contractual indexation does not make the amount of the contractual fee realistic, or if no indexation clause is provided for in the contract? In such a case, is modification of the contract an obligation or a right of the contracting authority?

For many years, the consortium has been a familiar form of cooperation between businesses pursuing public contracts. But this construction still raises legal questions, especially when a dispute arises and goes to court. Because this structure is deceptively similar to an ordinary partnership, sometimes it is unclear which members of a consortium may participate in court proceedings. The Supreme Court of Poland examined this issue in its judgment of 30 June 2021 (case no. III CSKP 75/21).

As the host of the procedure, in the contract documentation the contracting authority should specify the formal and technical requirements for a bid bond. In some procurement procedures, the contracting authority requires contractors to submit a bid bond with a validity extending beyond the bid validity period. In a recently issued ruling, the National Appeal Chamber opined on whether such provisions of the terms of reference are permissible, or are invalid by virtue of law (case no. KIO 3482/21).

Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.

The construction market is facing more challenges. After many problems associated with the pandemic, other major difficulties have arisen due to Russia’s war on Ukraine. This presents the second recent case of force majeure affecting the economy. Although the construction sector did well in the pandemic crisis, this time the outlook is much more pessimistic. Thus the new reality requires a rapid response and search for solutions to mitigate numerous risks.

The Public Procurement Law of 11 September 2019 improperly implements the exclusion ground for improper performance of a former contract, as it ignores the specifics of the Polish public procurement market. This error can be corrected by a legislative change or by a pro-EU interpretation of the existing law.