The Act of 18 September 2014 Amending the Public Procurement Law goes into effect on 19 October 2014. Contracting authorities will have to change the way they prepare tender documentation, including the criteria for evaluation of offers, the procedures for examining abnormally low prices, and the rules for exclusion of contractors and retaining bid bonds. Contractors will have to modify the way they reserve trade secrets as well as their reliance of third parties to demonstrate that they meet the conditions for participating in the procedure.
The changes will include, among other things:
- The need for the contractor to justify the reservation of trade secrets in its offer or application to participate in the tender
- Introduction of a discretionary basis for exclusion of a contractor for culpable and serious violation of its professional duties—a change arising out of case law from the European Court of Justice and the new Classic Procurement Directive (2014/24)
- Introduction of rules for reliance on resources of third parties by contractors and their joint and several liability
- Enabling contracting authorities to specify requirements in the contract description concerning performance of the contract by persons hired on the basis of an employment contract
- Modification of the rules for retaining bid bonds by the contracting authority—only with respect to the most advantageous offer
- Rules for application of non-price criteria for evaluation of offers
- Rules governing the issue of abnormally low prices
- The issue of indexation of the contractor’s fee.
The most important change in the Public Procurement Law involves joint and several liability of an entity making its resources available under Art. 26(2b). Following the amendment, a contractor will be able to rely on resources of third parties not only with respect to knowledge and experience, technical potential, personnel qualified to perform the contract, and the financial capacity of third parties, but also with respect to their economic capacity. But if a third party makes its resources available to the contractor, it will be jointly and severally liable with the contractor for loss to the contracting authority arising as a result of failure to provide the resources, unless the third party is not at fault. The new rule is intended to eliminate the phenomenon of buying and selling of references, although it is apparent that in practice if the contractor does not use the resources of a third party in performance of the contract, the third party which made its resources available to the contractor will not be jointly and severally liable under the new rule.
Another important change is the new rule on determination of abnormally low prices. Under the amendment, the contracting authority will commence a process for clarification of an abnormally low price if it appears abnormally low in relation to the subject of the contract and raises doubts on the part of the contracting authority with respect to the contractor’s ability to perform the contract in compliance with the requirements specified by the contracting authority or arising under separate regulations. The act also introduces a threshold of 30% of the value of the contract or the arithmetic average of the prices of all of the offers submitted, in which case the contracting authority will be required to commence a clarification procedure. This new rule has already generated a lot of controversy because it refers to doubts on the part of the contracting authority itself and not exclusively objective factors which, if they occurred, would require the contracting authority to examine whether a price offered was abnormally low. If a clarification is sought, the duty will rest on the contractor to prove that the price it has offered is not abnormally low.
It should also be pointed out that the amendment expands the grounds enabling a contracting authority to retain a bid bond. After the amendment enters into force, the contracting authority will be permitted to retain the bid bond also in a case where the contractor has failed to supplement the list of entities belonging to the same capital group or information that it does not belong to a capital group, or has not agreed to correction of some other oversight which makes the offer inconsistent with the terms of reference but will not cause a material modification of the offer. The contracting authority will be permitted to retain the bid bond only if the contractor’s failure prevents selection of its offer as the most advantageous. This means that a contractor whose offer is not the most advantageous will not have to worry that its deposit will be retained if it fails to supplement the documents or consent to a non-material correction of its offer.