public procurement | In Principle

If a contractor does not agree to extension of the binding period of its offer when requested by the contracting authority, the bid is rejected. However, the effects of expiration of the binding period are unclear when the contractor fails to extend the period at its own initiative. The current wording of the Public Procurement Law does not specify whether the contractor’s bid remains valid after the binding period expires.

Art. 647¹ of the Civil Code, providing for the investor’s secondary liability for the contractor’s debts to subcontractors, was introduced into the Polish legal system in 2003. In April 2017, the parliament amended it thoroughly in adopting the Act Amending Certain Acts to Facilitate Debt Recovery. Two years after implementation, we try to answer the question whether the title of the amending act corresponds to reality and subcontractors really have a better chance of receiving payment for their work.

The Public Procurement Law provides for rules autonomous from the Civil Code for settlements with subcontractors. The regulations apply independently of each other, but they are applied in parallel to contracts concluded under the public procurement regime.

Od czasu wprowadzenia do Kodeksu cywilnego, a później również do Prawa zamówień publicznych, przepisów o solidarnej odpowiedzialności inwestora za zapłatę należną podwykonawcom robót budowlanych, generalni wykonawcy znajdują się w swoistym potrzasku – między koniecznością nadzoru i dyscyplinowania podwykonawców a presją inwestora, by ich rozliczać.

An amendment to the Industrial Property Law has led to changes regarding particular types of trademarks such as collective marks and guarantee marks. Collective marks were included in the previous version of the act, but the guarantee mark is something new, replacing the collective guarantee mark. This will have certain implications for businesses.

If a bank denies financing for a contract for rolling stock (or other items subject to a tender) awarded in conformity with the principle of competitiveness because material collateral cannot be established in Poland, the contracting authority is required to award a contract for delivery with financing.

In anticipation of the new Public Procurement Law, the market is wandering in an uncharted wilderness of digitalisation, stumbling time and again over the ill-considered consequences of rulings. Public procurement needs a signpost: permanent and specific rules in line with the regulations.

On 24 January 2019, the Ministry of Entrepreneurship and Technology presented a draft of the new Public Procurement Law. The extensive new law is intended to simplify and streamline regulations so public procurement becomes more efficient and user-friendly.

The explanatory memorandum for the draft of the new Public Procurement Law indicates the need to increase the transparency and coherence of national regulations, recognising that the EU’s procurement directives have already been implemented in the Polish legal system. However, the effect of the “small amendment” of 2016 has been unsatisfactory from the very beginning. Hence, the draft contains a number of new solutions justified by the need to reflect the regulations of the procurement directives in the Polish act.

Chapter X of the draft new Public Procurement Law (Art. 620–655) obliges the contracting authority and the contractor to conduct a mandatory conciliation procedure. While the very idea of settlement of disputes deserves full support, the proposed detailed solutions raise serious doubts under the Polish Constitution and EU law.

One new procedure will replace the three most commonly used procurement procedures below the EU thresholds. The open bid will disappear, and the basic procedure without negotiations will appear. It is supposed to be easier and more flexible, but will it work?

The draft of the new Public Procurement Law, released by the Ministry of Entrepreneurship and Technology on 24 January 2019, proposes changes in the grounds for exclusion of contractors and institution for “self-cleaning,” bringing the Polish regulations closer to Directive 2014/24/EU.