Filing documents in procurement proceedings following amendment of the Public Procurement Law
Contractors initially declare that they meet the conditions for participating in a procurement, and at a later stage submit confirming documents. This rule applies to all modes for awarding public contracts, but the law provides for certain exceptions.
When documents are submitted: the rule and the exception
Under Art. 25a of the Polish Public Procurement Law, pursuant to the legislative overhaul that entered into force in July 2016 to comply with the EU’s new procurement directives, a bidder submits a declaration with its bid or request for admission to the tender, current as of the date of filing, stating that the contractor is not subject to exclusion and that it meets the conditions for participation in the tender or two-stage proceeding (selection criteria). The information contained in this declaration constitutes preliminary confirmation of the circumstances in question. In tenders over the EU thresholds this declaration is filed in the form of a European Single Procurement Document (ESPD). Below the EU thresholds, Polish law does not provide a set form for this document, so every contractor should prepare its own.
Then, under Art. 26 of the act, in the case of proceedings above the EU thresholds, prior to awarding the contract the contracting authority will summon the contractor whose offer was the highest rated to submit declarations or documents confirming fulfilment of the conditions for participation in the proceeding and the absence of grounds for exclusion. These documents must be current as of the date they are submitted. The contracting authority will set a time within which the contractor must submit the documents (not less than 10 days). As under prior law, it is not necessary for the contracting authority to demand submission of these documents in procurements under the EU thresholds. But if the contracting authority does decide to require such submission, the period for providing them must be at least 5 days.
This procedure for filing of documents may be modified if the contracting authority decides to exercise an exception provided in the law. Under Art. 26(2f) of the act, if necessary to ensure the proper conduct of the proceeding, the contracting authority may summon contractors at any stage of the proceeding to submit some or all of the declarations or documents confirming lack of grounds for exclusion or fulfilment of the conditions for participating in the proceeding.
This regulation may be used by the contracting authority to apply the old method for submission of documents concerning the contractors, i.e. demanding submission of documents together with the application or offer, if it is shown that this is necessary under the circumstances. On the same basis, the contracting authority may demand relevant documents at any time in the proceeding, e.g. after verification of the request for admission to the tender but before the deadline for filing of offers. The Public Procurement Law does not specify the time contractors should be given to provide such documents, but by analogy to Art. 26(1) it must be at least 10 days (above the EU thresholds) or 5 days (below the thresholds).
How up-to-date?
The statutory postponement of the time for filing documents does not mean that contractors should put off obtaining the relevant documents until the demand arrives from the contracting authority—particularly if the contract notice shows that such documents will be requested at some time prior to selection of the best offer, for example when the contracting authority indicates under Art. 26(2f) which documents it will require from bidders.
In the case of bigger entities, the quantity of these documents can be significant, particularly considering the amendments to the grounds for exclusion of contractors. For example, currently a clean criminal record must be shown not only for members of the management board, but also for the supervisory board and commercial proxies. It can be particularly difficult to obtain all required certificates concerning proxies, as there may be dozens of them in the case of larger contractors. The operational nature of their activity often means that proxies are not available at the place where the document can be obtained. And if the person’s lack of a criminal record must be demonstrated through a document prepared by a notary on the basis of a sworn statement by the person in question (for example when the person is from Japan, which does not have a counterpart to Poland’s National Criminal Register), the process of obtaining a complete set of these documents can be time-consuming.
With respect to how up-to-date the documents confirming the absence of grounds for exclusion or fulfilment of the conditions for participation must be, the new executive regulation on procurement documents (issued by the Minister of Development on 26 July 2016) retains the prior rule that certain documents must be issued no more than 3 months (e.g. certificates from the tax office) or 6 months (e.g. certificates from the National Criminal Register) before the deadline for filing offers or requests for admission to the tender. There is a similar rule for other subjective documents concerning contractors. However, under the Public Procurement Law, these documents must be current as of the date they are filed. These two regulations thus indicate a starting date and an ending date, setting a time range during which documents submitted by a contractor can be issued. In other words, the Public Procurement Law specifies how “new” the documents can be and the executive regulation specifies how “old” the documents can be (M. Kopacka, “How to evaluate the currency of declarations and documents filed after the amendment?” Lex 2017).
Thus contractors should not worry that documents they gathered before the summons from the contracting authority will be regarded as issued too early. Regardless of when the contractor is summoned to submit documents, they may be dated several months before the deadline for filing requests for admission or bids, and those deadlines continue to be the reference point. It must be borne in mind, however, that the content must be up-to-date as of filing. Therefore, regardless of the date the document is issued, it must reflect the state of facts existing as of the date of filing of the document, even if the document was issued several months earlier.
Reverse procedure
The rule discussed above, which applies to all of the modes for award of public contracts, should not be confused with the “reverse procedure” set forth in Art. 24aa of the Public Procurement Law. That provision refers only to an unrestricted tender and involves the situation where the contracting authority decides not to conduct even a preliminary evaluation of the contractors in subjective terms (based on their statements) until the most advantageous offer has been chosen.
In that case, as the Public Procurement Office indicates on its website, “First the contracting authority will evaluate the offers in terms of the conditions for rejection of the offer (Public Procurement Law Art. 89(1)) and the criteria for evaluation of offers described in the terms of reference, and after that, only with respect to the contractor whose offer was found to be the most advantageous (received the highest position in the ranking), will conduct a subjective evaluation of the contractor, i.e. examine the preliminary declaration and then demand submission of documents pursuant to Art. 26 (1) or (2) of the act.”
Hanna Drynkorn, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
