Anna Prigan | In Principle

The European Union has addressed the issue of the impact of third countries, from outside the EU, on the operation of the single market. Next year, the Commission will begin investigating sources of money giving foreign undertakings an advantage, including in public procurement procedures. Subsidised contractors will not get public contracts in the EU if awarding them a contract could disrupt the EU market.

The contracting authority may require contractors to conduct a site visit when justified by the subject matter of the contract. Failure to participate in an obligatory site visit will result in rejection of a bid. Contractors who do not manage to attend the site visit should request a new date for the visit before submitting a bid.

Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.

A contractor is obliged to calculate the bid price fairly and factor in everything that follows from the terms of reference, including typical risks associated with contract performance, so that the bid is realistic and allows for proper performance of the contract. If the bid price appears abnormally low or is otherwise questionable, the contractor must explain it in detail.

For the past two years, public procurement contractors have been forced to invoke force majeure to protect themselves from liability for delays in performance of contracts. We thought everything had been written about force majeure, but the war in Ukraine requires the invocation of force majeure in a different context.

Beginning this year, contracts for local government units in performance of their public duties must be executed using vehicles powered by electricity or natural gas. And when awarding contracts for purchase of new means of transport, all contracting authorities must allocate at least a portion of the funds to green vehicles. The Electromobility Act specifies the subject matter of such procurements, limits and types of vehicles.

The EU thresholds and the euro exchange rate for converting threshold amounts from euros to Polish zlotys will be higher from 1 January 2022. The PLN/EUR conversion rate is also going up.

When analysing their needs and requirements, contracting authorities must consider the possibility of taking into account social aspects of the procurement. The European Commission has just published the second edition of a guide on how to integrate social considerations into public procurement.

Public procurement is one of the biggest driving forces of the economy. Contract performance during the epidemic may be impeded, but ongoing public procurement proceedings should not be stopped just because people are currently working mainly at home.

EU thresholds and the average EU exchange rate for conversion of EUR thresholds into PLN will be lower from 1 January 2020, which means that some current contracts in Poland will exceed the EU thresholds.

Terms of reference should set contract performance deadlines that are possible to keep for completion of the contract and individual stages. It is better to specify these periods in years, months and days than as a specific date. However, if the contracting authority set specific dates which became impossible to meet after submission of the bids, it should modify them accordingly when signing the contract, reflecting the amount of time taken into account by contractors at the stage of submission of bids.

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.