Mirella Lechna-Marchewka | In Principle

Even when work was underway on an amendment to the Public Procurement Law in 2016, there was some controversy surrounding the question of in-house procurement. In late 2017, the National Appeal Chamber rejected the first contracts concluded under the new provisions between local government authorities. It would be unfortunate if at this time a practice emerged in Poland stifling cooperation between public authorities working together to carry out their duties.

The Court of Justice held in Esaprojekt sp. z o.o. v Województwo Łódzkie (Case C-387/14) that a contractor entering a tender individually cannot rely on the experience of a group of contractors it was a member of in performing another public contract if the contractor was not actively and specifically involved in performance of the contract. The ruling, issued in the context of a Polish tender, is widely regarded in Poland as controversial. But is the conclusion by the Court of Justice requiring experience to be based on actual experience really debatable?

Based on a recent judgment of the Court of Justice of the European Union, the provisions of the Polish Public Procurement Law permitting reliance on third-party capacity to demonstrate fulfilment of selection criteria are consistent with EU law.

The planned amendment to the Public Procurement Law only seems to revise the rules for modification of public contracts. The decisive role will still be played by the rules outlined in the case law of the Court of Justice and codified in Directive 2014/24/EU.

Many contractors, including those involved in public projects carried out under the Public Procurement Law, lose sleep over the theoretically harmless instrument provided for in Civil Code Art. 483 and 484. Contractual penalties are reserved for all manner of breaches of contract and in huge amounts. The time has to come to change that.

This year’s amendment of the Waste Act is forcing changes in the scheduling of incinerator projects. Target load start-up tests must be postponed until after the integrated permit is issued. This may give rise to claims by contractors for prolonging the project completion period because of a change in the law.

The contracting authority does not violate Art. 26(2b) of the Public Procurement Law by not awarding a contractor points for borrowed resources, because fulfilling the conditions to qualify for participation in a procurement proceeding relying on the potential of a third party is different from the stage of selection of a shortlist of contractors, for which the conditions may be defined in the manner adopted by the contracting authority.

Are proceedings before the Dispute Adjudication Board a necessary condition for seeking arbitration?

The FIDIC contract terms provide that disputes between the investor and the contractor are to be decided by a Dispute Adjudication Board. But in Poland the board’s rulings are often ignored by parties who disagree with them.

Water covers about 71% of the planet, but only some 5% of water resources (excluding seawater) are privately controlled. The water market is valued at some USD 800 billion per year and attracts increasing commercial interest.

The Ministry of Economy, in conjunction with the Prime Minister’s Office and the Public Procurement Office, has begun studying the operation of the public procurement system in Poland to develop recommendations for amending the Public Procurement Law.

An interview with Mirella Lechna, the partner in charge of the Infrastructure & Transport and Public Procurement practices at Wardyński & Partners, about the recent amendment of the Public Procurement Law concerning subcontractors.