The biggest overhaul in the history of Poland’s Public Procurement Law entered into force on 28 July 2016. Despite the passage of time, major issues connected with the practical application of the new regulations continue to arise. It can be expected that more issues will come up in 2017 to be resolved in procedures for award of public contracts in the case law from the National Appeal Chamber.
Apart from the ongoing process of implementing the new regulations on the ground, it will also be necessary to prepare for full electronisation of the public procurement regime.
In the case of procedures conducted by central contracting authorities, the shift to full electronic communications should occur from 18 April 2017, and in the case of other contracting authorities 18 October 2018. In practice, electronic communications means conducting procedures via a dedicated purchasing platform through which all communications will be conducted between the contracting authority and contractors, including filing of offers. Only appeal procedures will be conducted under same rules as before.
Work is also underway on a totally new Public Procurement Law. For now the work has advanced only to the conceptual stage, so the new law certainly will not be ready until 2018 at the earliest.
What will be the most pressing issues in the immediate future?
The recent amendment showed that uncertainty in the law has a great deleterious impact on the economy. Because of Poland’s delay in implementing the EU’s new procurement directives, and resulting doubts as to the correctness of tenders financed out of EU funds between 18 March 2016 (the implementation deadline) and 28 July 2016 (the actual implementation), many contracting authorities halted procedures, translating into problems for many industries relying on public contracts. Moreover, it turned out that even after entry into force of the amendment, the number of procedures continued to fall below that of previous years as numerous doubts surrounding the amendment prolonged preparations for new tenders.
The Polish public procurement market will soon experience a slowdown due to the completion of EU programs that were largely the source of financing for the country’s biggest projects. From 2020, EU funds available to Polish contracting authorities will begin to drop. But interest will grow in approaches for implementing projects enabling the use of private capital, public-private partnerships and concessions, as well as deployment of the EU funds that are still available. This will require solutions such as international procurements and innovation procurements—currently not very popular.
What else should you know?
Contracting authorities are slowly becoming aware that public contracts can stimulate economic growth and development of solutions desirable to specific contracting authorities. The use of social clauses encourages changes for example in forms of employment and standards of environmental protection, and consequently some of them are now mandatory. Contracting authorities may now use new procedures facilitating procurement of innovative solutions, even solutions that don’t yet exist in implementable form. In particular, the innovation partnership procedure, introduced by the 2016 amendment of the Public Procurement Law, makes it possible to procure solutions that have not yet been offered on the Polish market or still require expenditures on development or production of prototypes. This is a great option for contracting authorities wishing to purchase state-of-the-art solutions, but also an opportunity for contractors to carry out projects requiring investments in R&D. We predict that popularization of this procurement approach will depend primarily on efforts by contractors to persuade contracting authorities to consider it.