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What is the relevant legislation regulating the award of public contracts?
The Polish legislation framework regulating the award of public contracts consists of European Union (EU) law and relevant Polish legislation. Poland has transposed the following EU public procurement directives into Polish law:
- Directive 2014/24/EU of the European Parliament and of the Council of 26February 2014on public procurement and repealing Directive 2004/18/EC;
- Directive 2014/25/EU of the European Parliament and of the Council of 26February 2014on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC;
- Directive 2009/81/EC of the European Parliament and of the Council of 13July 2009on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security and amending Directives 2004/17/EC and 2004/18/EC; and
- Directive 2007/66/EC of the European Parliament and of the Council of 11December 2007amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of publiccontracts.
In addition, the European Commission’s regulation 2016/7of 5January 2016establishing the standard form for the European Single Procurement Document applies directly in Poland.
The Polish legislation transposing the above-mentioned EU directives into national law consists of the Act of 29January 2004Public Procurement Law (PPL) and secondary legislation regulating various technical aspects of public procurement.
The most relevant secondary legislation consists of:
- Regulation of the President of the Council of Ministers of 28December 2017on the average exchange rate of the zloty to the euro constituting the basis for calculating the value of a contract;
- Regulation of the President of the Council of Ministers of 28December 2015on the thresholds of contracts and design contests that require the dispatch of a notice to the Publications Office of the EU (amended by the regulation dated 22August 2016);
- Regulation of the Minister of Economic Development of 26July 2016on the types of documents that the contracting authority may require from the contractor in the contract award proceedings;
- Regulation of the President of the Council of Ministers of 22March 2010on the rules of procedure concerning the examination of appeals (amended by the regulation dated 20December 2016); and
- Regulation of the President of the Council of Ministers of 15March 2010on the amount and manner of collecting the appeal fee, types of costs in the appeal proceedings and the manner of their settlement (amended by the regulation dated 19December 2016).
Is there any sector-specific procurement legislation supplementing the general regime?
The PPL regulates all types of public procurement, including defence and utility procurement. The PPL is supplemented by two acts regulating private-public partnerships (PPPs), and work and services concessions: the Act of 21October 2016Concession contract on constructions works and services, and the Act of 19December 2008on PPPs.
There are also a few examples of specific legislation that regulates the procedures leading to award of public contracts in very narrow areas, such as the award of concessions for construction and maintenance of highways. In some areas, there are also legal acts modifying (usually in a limited scope) the general rules of PPL, for example, in the case of award of contracts related to the construction of Polish nuclear power plants or in the case of tenders for waste management.
In which respect does the relevant legislation supplement the EU procurement directives or the GPA?
The PPL regulates all public procurement procedures in Poland, including those within the EU thresholds. Public procurement below the EU thresholds is generally regulated in a similar way as procurements above the thresholds, though there are some differences (eg, notices are published in a special bulletin in Polish, a European single procurement document form is not required and the right for legal remedies is limited).
Poland, as a member of the EU, is a party to the World Trade Organization Agreement on Government Procurement (GPA). Polish awarding authorities must indicate in each procurement notice published in the Official Journal of the EU (OJEU) if the procurement is covered by the GPA.
In addition, in accordance with the PPL, the awarding authority, to the extent specified in the GPA and in other international agreements to which the EU is a party, shall ensure that contractors from states party to such agreements, and construction workers, suppliers and services originating in these states, receive treatment that is no less advantageous than that accorded to contractors, construction workers, suppliers and services originating in the European Union.
Are there proposals to change the legislation?
The Polish authorities have started the process of preparation of a completely new and complex public procurement regulation. The main reason is the need to replace the current PPL, which has been amended many times. Another reason is the development of public procurement jurisprudence that strongly influences the practical application of the legislation. The initial plan assumed preparation of the new law in 2017, however, it is unlikely that the whole legislative path will be completed before 2019.
Applicability of procurement law
Which, or what kinds of, entities have been ruled not to constitute contracting authorities?
The PPL applies only to public contracts awarded by entities that are specified in article 3of the PPL. These entities are:
- public finance sector entities within the meaning of the provisions on public finance (eg, central administration units, municipalities, universities, hospitals);
- state organisational units not having legal personality (other than those listed above);
- legal persons established for the specific purpose of meeting needs of a general nature, not having industrial or commercial character, if the entities referred to above separately or jointly, directly or indirectly through another subject:
- finance them at over 50per cent;
- hold more than half of their shares;
- supervise their managing body; or
- have the right to appoint more than half of the members of their supervisory or managing body - insofar as the legal person does not operate under ordinary market conditions, its purpose is not generating profit and it does not incur losses arising out of the conducted activity;
- combinations of entities referred to above;
- other entities, where:
- the contract is awarded for the purpose of performing a utility type of activity and such an activity is performed on the basis of special or exclusive rights;
- where the entities referred to above separately or jointly, directly or indirectly through another subject have a controlling influence on them through holding more than half of the shares or more than half of the votes resulting from shares; or
- having the right to appoint more than half of the members of their supervisory or managing body;
- other entities, if the following circumstances occur:
- more than 50per cent of the value of a contract awarded by them is financed out of public funds or by public entities;
- the value of a contract is equal to or exceeds the EU thresholds; or
- the object of the contract shall be construction works in the area of land or water engineering specified in the Annex II to Directive 2014/24/EU, the construction of hospitals, sports and recreation or rest facilities, school buildings, buildings of schools of higher education or buildings used by public administration or services related to such construction works; and
- entities with which a contract for a construction work concession has been concluded under the Act of 9January 2009on Concessions for construction works or services, to the extent to which they award a contract for the purpose of the execution of that concession.
Therefore, public procurement rules apply not only to public entities but also to some categories of private entities.
There is only one European Commission decision regarding the Polish utility sector that grants an exemption under article 30of Directive 2004/17: Commission Decision of 11September 2008establishing that article 30(1) of Directive 2004/17/EC is not applicable to the production and wholesale of electricity in Poland.
Are contracts under a certain value excluded from the scope of procurement law? What are these threshold values?
The PPL does not apply to contracts below €30,000. In addition, if the value of the contract exceeds the EU threshold, then specific legal regulations resulting from the EU directives apply. The differences between the regulations applying to the contracts above and below the EU threshold are not substantial. The main differences include the rules of tender notice publication, time limit for the submission of tenders and available legal remedies.
The EU thresholds are the following:
- €144,000 - for supply and service contracts awarded by public finance sector entities;
- €221,000 - for supply and service contracts awarded by other public entities;
- €443,000 - for supply and service contracts awarded by awarding entities in the utility sector and the defence and security sector; and
- €5.548million - for construction works contracts awarded by any awarding entity.
The value of the contract is calculated as net value, without VAT.
Amendment of concluded contracts
Does the legislation permit the amendment of a concluded contract without a new procurement procedure?
A public contract can be amended in situations described in the PPL. The Polish regulation complies with the regulation provided in article 72of 2014/24EU Directive.
According to article 144of the PPL, the general principle is that any changes in the provisions of a concluded contract or framework agreement, as regards the contents of the bid based on which the contractor has been selected, shall be prohibited unless at least one of the following circumstances occurs:
- the changes have been envisaged in the contract notice or the specification of essential terms of the contract in the form of unambiguous contractual provisions that specify their scope, especially a possibility of changing the amount of the contractor’s remuneration and the nature and conditions of introducing the changes;
- the changes pertain to the execution of additional supplies, services or construction works by the original contractor not covered by the main contract, insofar as they have become necessary and all of the following conditions have been fulfilled:
- a change of contractor may not be made for economic or technical reasons, especially concerning interchangability or interoperability of equipment, services or installations ordered under the main contract;
- a change of contractor would cause significant inconvenience or substantial increase in costs for the contracting authority;
- the value of each subsequent change does not exceed 50per cent of the value of the contract originally set forth in the agreement or framework agreement; and
- both of the following conditions have been fulfilled:
- it is necessary to change the agreement or framework agreement because of circumstances that the contracting authority, acting with due diligence, could not have foreseen; and
- the value of the change does not exceed 50per cent of the value of the contract originally set forth in the agreement or framework agreement;
- the contractor to which the contracting authority awarded the contract is to be replaced by a new operator:
- under the contractual provisions referred to above;
- as a result of a merger, division, transformation, bankruptcy, restructuring or acquisition of the existing contractor or its enterprise, insofar as the new contractor fulfils the conditions for participation in the procedures, the grounds for exclusion do not apply thereto, and this does not entail any significant changes in the agreement; or
- as a result of taking over by the contracting authority of liabilities of the contractor towards its subcontractors;
- the changes, irrespective of their value, are not significant; and
- the total value of changes is lower than the EU threshold value, and is lower than 10per cent of the value of the contract originally set forth in the agreement as regards contracts for services or supplies or, in the case of contracts for construction works, is lower than 15per cent of the value of the contract originally laid down in theagreement.
A change in the provisions contained in the agreement or framework agreement shall be deemed significant where:
- it changes the overall nature of the agreement or framework agreement compared with the nature of the agreement or framework agreement set out in the original wording; or
- it does not change the overall nature of the agreement or framework agreement, but at least one of the following circumstances has occurred:
- the change introduces conditions that, if they had been part of the initial contract award procedure, would have allowed for the admission of other contractors than those initially selected or for acceptance of a tenders other than that originally accepted;
- the change distorts the economic balance of the agreement or framework agreement in favour of the contractor in a way not originally envisaged in the agreement or framework agreement;
- the change materially extends or diminishes the scope of the performances and obligations under the agreement or framework agreement; or
- the change consists in the replacement of the contractor to which the contracting authority awarded the contract by a new contractor in the cases other than those enumerated above.
Apart from minor differences in wording, Polish law follows the EU directive principles and does not introduce any other situations where the amendment of the contract is not be possible.
Any contractual provision amended in breach of the rules described above shall be invalidated and replaced by contractual provisions in their original wording.
Has there been any case law clarifying the application of the legislation in relation to amendments to concluded contracts?
The provisions described above, regarding the possibility of amending a concluded contract, have been in force since 28July 2016, and they apply only to contracts that were concluded in public procurement procedures started after that date. As a result, the new case law on the scope of permitted amendments to the concluded contracts has started to be built.
The previous regulation was very restrictive and allowed only for insignificant amendments (as defined in the European Court of Justice decision in C-454/06Pressetext), Significant amendments were possible only if the contracting authority provided for the possibility to make such amendments in the contract notice or the terms of reference, and laid down the terms and conditions of such amendment.
Contracting authorities quickly began to use new rules, which are more flexible. The most popular basis for modification of a contract is a situation where the total value of changes is lower than the EU threshold value, and is lower than 10or 15per cent of the value of the contract originally set forth in the agreement, as this basis allows for modification in any situation. Another trend is that contracting authorities develop long lists of circumstances allowing for modification of a contract, which are included in the contract notice.
In which circumstances do privatisations require a procurement procedure?
The PPL does not contain any specific regulations regarding privatisations. Some transactions that bring an effect similar to privatisation may be partially regulated by the PPL (eg, some exclusion from the application of the PPL may apply or the provisions allowing for direct award of contracts), however, there is no general regulation of thismatter.
In which circumstances does the setting up of a public-private partnership (PPP) require a procurement procedure?
PPPs are regulated by the Act of 19December 2008on Public-Private Partnerships. This Act regulates the cooperation between a contracting authority and a private partner regarding joint implementation of a project based on the allocation of responsibilities and risks between the parties.
In some situations, the selection of the private partner is governed by the PPL. Generally, if the private partner’s remuneration is the right to collect profits from the subject matter of the PPP or mainly such right together with payment of a sum of money, then the selection of the private partner and the PPP contract are governed by the Act on Concessions for Works or Services of 21October 2016.
In other cases, the selection of the private partner and the PPP contract are governed by the PPL (to the extent not regulated in PPP legislation).
Advertisement and selection
In which publications must regulated procurement contracts be advertised?
The notices about procurement procedures must be published:
- in case of procurement below the EU thresholds, in the Official Gazette and the Biuletyn Zamówień Publicznych (the Public Procurement Bulletin), available on the internet portal of the Public Procurement Office; and
- in case of procurement above the EU thresholds, in the OJEU.
The awarding entity may additionally publish the notice in another manner, for example, in the press.
Moreover, the awarding entity in all procurement proceedings that are published shall make the specification of the tender or other information about the procurement (depending on the type of procedure) available on its website from the date of publication of the contract notice in the OJEU or the Public Procurement Bulletin.
Are there limitations on the ability of contracting authorities to set criteria or other conditions to assess whether an interested party is qualified to participate in a tender procedure?
The awarding entity must specify the conditions of participation in the proceedings and evidence required from contractors proportionally to the object of the contract and in a way permitting the assessment of the contractor’s capacity to duly perform the contract.
The conditions of participation in the proceedings may concern:
- competence or authorisations to conduct a specific professional activity;
- economic or financial position; or
- technical or professional capacity.
The limitation for contracting authorities results mainly from the application of the proportionality rule - the conditions cannot be more severe than necessary to perform the contract.
The specific limitation concerns the condition related to the annual turnover. The awarding entity shall not require the minimum annual turnover to exceed twice the contract value except in duly justified cases relating to the object of the contract or the method of itsperformance.
The PPL provides also for specific right of the awarding entities, which may, at any stage of the proceedings, consider that a contractor lacks the required capacities where the engagement of contractor’s technical or professional resources in other business ventures of the contractor may adversely affect the contract performance.
Is it possible to limit the number of bidders that can participate in a tender procedure?
The number of bidders can be limited only in restricted or negotiated procedures. In these procedures, bidders are shortlisted by the contracting authority. The number of the shortlisted bidders must be specified in the contract notice and shall ensure competition, however, it shall no be fewer than five and no more than 20in cases of restricted tender, and no fewer than three in cases of negotiations with publication and competitive dialogue.
If the number of the bidders that meet the conditions for participation is greater than that specified in the notice, the awarding entity shall invite the bidders, selected based on the selection criteria, to submit tenders.
If the number of contractors that meet such conditions is less than the one specified in the contract notice, the awarding entity shall invite all contractors to submit their tenders.
Regaining status following exclusion
How can a bidder that would have to be excluded from a tender procedure because of past irregularities regain the status of a suitable and reliable bidder? Is the concept of ‘self-cleaning’ an established and recognised way of regaining suitability and reliability?
The PPL implements the concept of self-cleaning regulated in the EUDirectives.
A contractor who is subject to exclusion may provide proof that the measures taken by it are sufficient to demonstrate its reliability. The PPL includes a list of such exemplary measures:
- redressing the damage;
- payment of a compensation;
- explanation of the facts and cooperation with prosecution authorities; and
- undertaking specific technical, organisational and personnel measures that are appropriate to prevent further misconduct of thecontractor.
The self-cleaning remedy shall not apply in respect of a contractor that is an entity subject to a valid court judgment prohibiting it from competing for a contract.
The proof provided by a contractor is evaluated by the awarding entity, which must decide whether it finds them sufficient having regard to the importance and special circumstances of the contractor’s act that is a basis for exclusion.
The procurement procedures
Does the relevant legislation specifically state or restate the fundamental principles for tender procedures: equal treatment, transparency and competition?
The PPL implements fully the general principles of the public procurement set out in the Directives (ie, fair competition, equal treatment of economic operators, proportionality and transparency).
Independence and impartiality
Does the relevant legislation or the case law require the contracting authority to be independent and impartial?
No, there is no such specific provision; however, this rule may be interpreted from the principle of equal treatment and fair competition.
In addition, there are rules regarding persons who perform activities in connection with the contract award proceedings. Such persons shall be subject to exclusion if they are in a situation of conflict of interests. These may include:
- being in competition for the award of the contract;
- being married or related to the contractor competing for the award of a contract;
- prior to three years before the initiation of the contract award proceedings they:
- were employed by or in a mandate with a competing contractor; or
- were a member of a managing or supervisory body of a competing contractor; and
- being in any legal or actual relationship with a competing contractor that may raise justified doubts as to their impartiality.
Persons who perform activities in the contract award proceedings must provide a written statement on the lack of, or the existence, of potential conflicts of interest, such as those listed here.
Conflicts of interest
How are conflicts of interest dealt with?
The PPL provides detailed rules on conflicts of interest that are wider than those regulated in the Directives.
The awarding entity may decide (such possibility is indicated in the notice) to exclude a contractor if the contractor, an acting member of the contractor’s managing or supervisory body, or its commercial proxy authorised to represent it, are in a relationship that may trigger a conflict of interest with the awarding entity, persons authorised to represent the awarding entity, members of the tendering commission, or experts of the tendering commission, unless it is possible to ensure impartiality on the part of the awarding entity other than by excluding the contractor.
A conflict of interest is understood to be if a contractor or any above-mentioned person:
- is married, related by blood or affinity in the direct line, related by blood or affinity in the collateral line up to the second degree, or related by adoption, guardianship or curatorship to the contractor, the contractor’s legal agent or a member of managing or supervisory bodies of the contractors competing for the award of a contract;
- before the lapse of three years from the date of the initiation of the contract award proceedings, remained in a relationship of employment or mandate with the contractor or was a member of managing or supervisory bodies of contractors competing for the award of a contract; or
- remains in such legal or actual relationship with the contractor that may raise justified doubts as to his or her impartiality.
Bidder involvement in preparation
How is the involvement of a bidder in the preparation of a tender procedure dealt with?
The awarding entity shall exclude contractors and their employees that participated in preparing contract award proceedings, and also any person performing work under a contract of mandate, a contract for specific work, a contract of agency or another contract for providing services who participated in preparing such proceedings, unless the resultant distortion of competition may be eliminated by some means other than the exclusion of the contractor from participating in the proceedings.
This is an obligatory exclusion that applies to each procurement.
What is the prevailing type of procurement procedure used by contracting authorities?
According to the recent statistical data published by the Public Procurement Office, the most popular type of the contract award procedure is open tendering.
The open tendering was used in 81.80per cent of cases. Other procedures were used much more rarely: restricted tendering was used in 0.70per cent of cases and negotiated procedure with publication in 0.05per cent.
In cases of procurement proceedings of a value below the EU thresholds, the open tendering was used in 80.72per cent of cases. Other competitive procedures were used very rarely. There are a large number of procurement proceedings using the non-competitive procedure of direct-award contract - 14.27per cent in 2016 - and the amount is stillincreasing.
Separate bids in one procedure
Can related bidders submit separate bids in one procurement procedure?
No, in such situations they shall be excluded from the procedure (this is an obligatory exclusion). The exclusion concerns contractors that, while being part of the same capital group, submitted separate tenders, tenders for one lot or requests for participation in the proceedings, unless they can demonstrate that the existing links between them do not prejudice fair competition in contract award proceedings.
Each contractor, within three days of the day of receiving the invitation to submit a bid or from publication on a website of the information about submitted bids, shall submit to the awarding entity a declaration on being or not being a part of the same capital group as another bidder. Along with the submitted declaration, a contractor may provide proof that links with another contractor do not lead to distortion of competition in the contract award proceedings.
Negotiations with bidders
Is the use of procedures involving negotiations with bidders subject to any special conditions?
The procedures involving negotiations can be used only in specific situations. The competitive dialogue and the negotiations with prior publication can be used only if at least one of the circumstances below hasoccurred:
- during the prior proceedings under the open or restricted tendering procedure a request for participation in the proceedings was not submitted and no tenders were submitted, or all the tenders were rejected because of their non-compliance with the description of the object of the contract while the original terms of the contract have not been substantially altered;
- the contract value is less than the EU threshold;
- the solutions available at the market cannot satisfy, without being adjusted, the awarding entity’s needs;
- the construction works, supplies or services include design or innovative solutions;
- the contract may not be awarded without previous negotiations as a result 0f special circumstances regarding its nature, degree of complexity or legal or financial conditions, or as a result of risk connected with the construction works, supplies or services; or
- if the awarding entity cannot describe the object of the contract in a sufficiently precise manner by reference to a specific standard, the European technical assessment, the common technical specification or the technical reference.
Only awarding entities in the utility sector can use the negotiations with prior publication in every situation without having to meet any of these conditions.
There is also a special procedure of negotiations without publication, but it can be used only in exceptional situations.
If the legislation provides for more than one procedure that permits negotiations with bidders, which one is used more regularly in practice and why?
The procedure of negotiations with publication is the most popular, mainly because awarding entities in the utility sector may use it for all procurement projects. However, in general, the negotiated procedures are rather rare - they are regarded as time consuming, long-lasting and prone to problems during a control of the correctness of public procurement procedures.
What are the requirements for the conclusion of a framework agreement?
There are no specific requirements for the conclusion of the framework agreement. The only limitation concerns the choice of procedure used for the award of the framework agreement. Open tendering and restricted tendering are always possible, while other procedures are possible only if specific conditions are met.
May a framework agreement with several suppliers be concluded?
The framework agreement can be concluded with several suppliers. In such a case, the framework agreement enables the awarding entity to award contracts covered by a framework agreement to the contractor party in two ways:
- in a form of a direct call, if the framework agreement provides for all the conditions regarding the execution of the contract and the conditions of selecting the contractors that will execute the contract; or
- in a form of a mini-competition, requesting the submission of tenders where not all the conditions of execution of the contract or not all the conditions of selecting the contractors have been set forth in the framework agreement.
It is also possible to combine the above-mentioned procedures.
Changing members of a bidding consortium
Under which conditions may the members of a bidding consortium be changed in the course of a procurement procedure?
Any pre-contract award changes to the membership of bidding consortium are not possible and they lead to exclusion from the contract award procedure.
Participation of small and medium-sized enterprises
Are there specific mechanisms to further the participation of small and medium-sized enterprises in the procurement procedure? Are there any rules on the division of a contract into lots? Are there rules or is there case law limiting the number of lots single bidders can be awarded?
The PPL transposed all the EU regulations in the directives aimed to increase access to public procurement markets for small and medium-sized enterprises.
The contracting authority may divide the contract into lots. It is not an obligation, but in case of resigning from such division the awarding entity shall justify its decision in writing in the procurement protocol.
In case of dividing the contract into lots, the awarding entity shall indicate whether tenders may be submitted for one, several, or all lots of the contract, as well as the maximum number of lots that may be awarded to one contractor. The awarding authority shall also specify the criteria it intends to apply for determining which lots will be awarded to the contractor, where the contract award procedures would result in one contractor being awarded more lots than the maximum number for which the contract may be awarded to it.
This is a new solution, therefore there is no relevant case law. The PPL itself does not specify any conditions for limitation of the number of lots single bidders can be awarded, therefore the general rules of proportionality and equal treatment shall apply.
What are the requirements for the admissibility of variant bids?
The contracting authority may admit or require the submission of a variant bid. In such a case, the tender specification shall include the description of the manner of presenting variant tenders and minimum conditions that the variant tenders must satisfy, along with the selected evaluation criteria.
Must a contracting authority take variant bids into account?
Yes, if a variant bid is allowed it must be considered. In the contract award procedure for supplies or services, the awarding entity cannot reject the variant bid on the sole ground that choosing it would lead to awarding a contract for services but not a contract for supplies, or to awarding a contract for supplies but not a contract for services.
Changes to tender specifications
What are the consequences if bidders change the tender specifications or submit their own standard terms of business?
Such a bid shall be rejected, as its content does not correspond with the content of the specification of the tender.
What are the award criteria provided for in the relevant legislation?
Public contracts are awarded to the tenderer who has submitted the most advantageous bid determined on the basis of the contract award criteria. The criteria must be provided in the specification of tender.
The contract award criteria shall be either the price; the cost; or the price or cost and other criteria related to the object of the contract. Such other criteria may include quality, social aspects, environmental aspects, innovative aspects, organisation, occupational qualifications, experience of persons assigned to implement the contract and aftersales service, and technical assistance or terms of supply.
The awarding entities that are public finance sector entities or other state organisational units may apply the price criterion as the sole award criterion or as a criterion of the weight exceeding 60per cent, if they describe in the specification the quality standards referring to all significant features of the object of the contract and demonstrate in protocol to the procurement procedure how the life-cycle costs were taken into account in the description of the object of the contract.
Abnormally low bids
What constitutes an ‘abnormally low’ bid?
There is no legal definition of an ‘abnormally low’ bid. An abnormally low bid is a bid where the offered price or cost, or its significant components, appears to be abnormally low in relation to the object of the contract and gives rise to the awarding entity’s doubts as to the possibilities of performing the object of the contract in compliance with the requirements.
What is the required process for dealing with abnormally low bids?
If the awarding entity has doubts regarding the submitted bid and its abnormally low price or cost, it shall request the contractor to provide the explanation.
If the total price of the bid is by at least 30per cent lower than the gross value of the contract, or 30per cent lower than the arithmetic mean of prices of all submitted bids, the awarding entity is obliged to request the contractor to provide the explanations, unless the difference results from obvious circumstances.
The contractor shall explain the price or costs of its bid, including submitting evidence concerning calculation of the price or cost, in order to demonstrate either savings of the contract performance in result of used solutions or exceptionally favourable conditions for the performance of the contract available only to the contractor or other factors that justify the offered price.
The awarding entity shall reject a tender submitted by a contractor who failed to provide explanations or where the evaluation of explanations confirms that the submitted tender contains an abnormally low price or cost.
Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?
Procurement complaints are filed with the National Appeals Chamber (NAC), which is a special quasi-arbitration body in Warsaw dedicated to resolving public procurement disputes.
The parties may subsequently file an appeal with the district court against the NAC’s ruling.
The court’s judgment is final. Only the president of the Public Procurement Office may file a cessation to the Supreme Court.
If more than one authority may rule on a review application, do these authorities have the power to grant different remedies?
Timeframe and admissibility requirements
How long do administrative or judicial proceedings for the review of procurement decisions generally take?
The complaint is usually considered by the NAC within 15days after filing, during an oral hearing. The judicial procedure usually takes one to two months from filing the appeal.
What are the admissibility requirements?
A complaint to the NAC may be filed against any act of the awarding authority contrary to the provisions of PPL or any omission by the contracting authority.
A contractor must demonstrate that it has or may have had an interest in obtaining a given contract and has suffered or may suffer damage as a result of the infringement by the awarding entity of the provisions of the PPL.
If the contract value is less than the EU threshold value, an appeal to the NAC may be filed only in a few specified situations, such as the exclusion of the contractor from contract award procedures or the rejection of its bid.
The complaint shall be lodged generally within 10days from the date of sending the information concerning an act by the awarding entity constituting grounds for its lodging. The deadline is five days in case of tenders below the EU threshold.
What are the time limits in which applications for review of a procurement decision must be made?
The NAC shall examine the complaint within 15days from its delivery to the president of the Public Procurement Office. According to the published statistics, the average duration of such proceedings does not exceed this term. The proceedings before the court shall last onemonth.
Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?
Filing a complaint appeal automatically blocks the possibility for the awarding authority to conclude a contract until the NAC issues its judgment. The awarding authority may submit a request to the NAC for the revocation of the prohibition on concluding the procurement contract.
Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
There are no statistics for this type of application.
Notification of unsuccessful bidders
Must unsuccessful bidders be notified before the contract with the successful bidder is concluded and, if so, when?
The awarding entity shall immediately notify all contractors of information such as:
- the choice of the most advantageous tender, providing the name and address of the contractor whose tender has been selected;
- the names and addresses of the contractors who submitted tenders and the number of points received by the tenders under each tender evaluation criterion and the total number of points achieved;
- the contractors that have been excluded; and
- the contractors whose tenders were rejected and the reasons for tender rejection.
In case of rejecting the tenders, the information shall contain clarification of the reasons for which evidence presented by the contractor has been deemed insufficient by the awarding entity.
The information about the choice of the most advantageous tender must also be made available on a website of the awarding entity.
Access to procurement file
Is access to the procurement file granted to an applicant?
The procurement file is open to the public. Some documents are made available after the most advantageous tender is selected or after the cancellation of the proceedings, however, bids shall be made available upon their opening.
The access may be in person or by sending a request to provide copies of selected documents.
Is it customary for disadvantaged bidders to file review applications?
Filing a review application happens very often. Every year the contractors submit around 3,000complaints to the NAC. As a consequence of adding new grounds to the PPL for complaints in tenders below the EU threshold, it is expected that this number will increase.
Violations of procurement law
If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?
Yes, but the PPL does not regulate this matter, therefore, it must based on the general principles of civil law - the contractor must prove that it suffered a loss and that this loss is a direct consequence of the violation of the procurement law.
May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?
A concluded contract may be subject to invalidation. The procedure of invalidation is initiated by the president of the Public Procurement Office in cases where an awarding entity performed an act or an omission in violation of a provision of the PPL, which has or could have influenced the result of the proceedings.
Is legal protection available to parties interested in the contract in case of an award without any procurement procedure?
The direct award of a contract in violation of the provisions of the PPL is one of the situations when a concluded contract may be invalidated. Moreover, any contractor may file a complaint if such illegal direct award was made. If the award was made without publication of the information about it, the deadline for filing the complaint is prolonged up to six months from conclusion of the contract in case of procurement above the EU thresholds, or one month in other cases.
What are the typical costs of making an application for the review of a procurement decision?
The fee for filing a complaint to the NAC is from €3,500to €4,700, depending on the value and the type of subject of the procurement. The fee for a judicial complaint is from €17,800to €23,800.