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Cyprian Herl

Prohibited provisions in subcontracts in public procurement
Contractors often take advantage of their stronger negotiating position by imposing terms in subcontracts. The new Public Procurement Law includes Art. 463 to protect subcontractors from unfairly framed contractual obligations. Will subcontractors benefit from the new regulation?
Prohibited provisions in subcontracts in public procurement
Tales from the National Appeal Chamber: Differences between material and immaterial defects during handover of construction works
Flawless performance of a public contract is very rare. Therefore, the case law has adopted the principle that contracting authorities may refuse the final handover only if there are material defects. But what is the nature of material defects, and how can the procedure for handover of works be properly defined in a public contract? These issues were recently considered by the National Appeal Chamber (KIO) in its ruling of 1 December 2020 (KIO 2965/20), which additionally took a stand on the issue of allegedly grossly excessive contractual penalties and limits on such penalties.
Tales from the National Appeal Chamber: Differences between material and immaterial defects during handover of construction works
Tales from the National Appeal Chamber: Non-statutory grounds for in-house procurement?
Municipal waste collection and transport is the subject of many in-house procurements in Poland. Art. 67(1)(12) of the Public Procurement Law provides one of the possible grounds for awarding such contracts, requiring the contracting authority to meet three conditions. But are there really only three? This issue arose in a case in which the National Appeal Chamber had to decide whether the contracting authority must also meet other, non-statutory conditions to properly award a sole-source contract.
Tales from the National Appeal Chamber: Non-statutory grounds for in-house procurement?
Tales from the National Appeal Chamber: A contractor may freely allocate the value of individual parts of a lump-sum fee
When valuing bids in a public procurement procedure as a lump sum, contractors may freely determine the value of individual parts of the contract. For the contracting authority, only the total value of the contract is relevant, and not the valuations of individual parts. But in every case the contractor should examine the documentation to determine whether the contracting authority has included any limitations in this respect. This is the guidance that can be drawn from the ruling by the National Appeal Chamber of 20 October 2020 (KIO 2101/20).
Tales from the National Appeal Chamber: A contractor may freely allocate the value of individual parts of a lump-sum fee
Tales from the National Appeal Chamber: The contracting authority must create equal conditions for all contractors
Fair competition and equal treatment of contractors are the main principles of awarding public contracts, and all actions taken by the contracting authority in preparing and conducting the procedure must comply with these principles. Nonetheless, procurement procedures often raise questions about how these principles should be applied in practice. Some doubts were recently dispelled by the National Appeal Chamber in its ruling of 15 October 2020 (case no. KIO 2104/20).
Tales from the National Appeal Chamber: The contracting authority must create equal conditions for all contractors
Tales from the National Appeal Chamber: Proper calculation of the three-year exclusion period for breach of an earlier contract
An optional ground for exclusion from procurement proceedings, breach of an earlier public contract, is limited to three years after occurrence of the event that is basis for the exclusion. But a problem arising in practice is which event should be considered when calculating the three-year period. Termination of the contract by the contractor? Repudiation of the contract by the contracting authority? Or perhaps entry of a judgment for damages for breach of the earlier contract? The answer can be found in the ruling by the National Appeal Chamber of 26 August 2020 (case no. KIO 1781/20).
Tales from the National Appeal Chamber: Proper calculation of the three-year exclusion period for breach of an earlier contract
May a contractor whose offer is rejected appeal to the National Appeal Chamber?
A contractor filing an appeal must duly demonstrate that it has standing to appeal under Art. 179(1) of the Polish Public Procurement Law. There is an endless debate in the case law and the legal literature over which entities are entitled to file an appeal in a procedure for award of a public contract. The National Appeal Chamber spoke out in this dispute in its ruling of 23 October 2019 (case no. KIO 2031/19), responding to the question whether a contractor whose bid has been rejected still has a legal interest in filing an appeal.
May a contractor whose offer is rejected appeal to the National Appeal Chamber?
Tales from the National Appeal Chamber: Consequences of imprecise description of conditions for participation in contract award procedure
In the tender documentation, the contracting authority may require contractors to meet certain conditions for participation. These should be precise and duly described so the contractors can adequately demonstrate their fulfilment. But what if the contracting authority has not precisely defined a condition for participation in the procedure? In its ruling of 3 July 2020 (KIO 1001/20), the National Appeal Chamber held that the interpretation of the condition more favourable to the contractor should be applied.
Tales from the National Appeal Chamber: Consequences of imprecise description of conditions for participation in contract award procedure
Tales from the National Appeal Chamber: Meeting the conditions for participation in procurement proceedings and reliance on the capacity of third parties
To meet conditions of education, professional qualifications and experience in a contract award procedure, a contractor may rely on the abilities of other entities. How to do so properly? And can a defective third-party commitment be corrected? The National Appeal Chamber answered that question in its ruling of 13 July 2020 (KIO 1174/20). A contractor who relies on resources of other entities must entrust the performance of the relevant part of the contract to the entity making those resources available.
Tales from the National Appeal Chamber: Meeting the conditions for participation in procurement proceedings and reliance on the capacity of third parties
Abusive clauses under the new Public Procurement Law
Poland’s new Public Procurement Law, which enters into force on 1 January 2021, identifies a set of clauses that cannot be included in public contracts. Will Art. 433 of the new act be regarded as a catalogue of abusive clauses? What types of provisions will be prohibited?
Abusive clauses under the new Public Procurement Law
Tales from the National Appeal Chamber: Submission of a bid bond by a consortium
Several contractors apply together for the award of a public contract. Can they submit a bid bond in the form of a bid bond guarantee that does not name all of the members of the consortium? This issue has been, and remains, the subject of debate in the legal literature and case law. Taking a position in this debate, in its ruling of 31 July 2020 (case no. KIO 1183/20), the National Appeal Chamber stressed that the decisive role is played by the wording of the guarantee itself, which must unequivocally specify the scope of liability of the guarantor (e.g. bank, insurance company, or corporate guarantor) in terms of which entities and subject matter are covered.
Tales from the National Appeal Chamber: Submission of a bid bond by a consortium
Tales from the National Appeal Chamber: Proper self-cleaning by contractors
The “self-cleaning” procedure set forth in Art. 24(8) of the Public Procurement Law allows a bidder to seek the award of a public contract despite the existence of grounds for exclusion. But what evidence of self-cleaning should a contractor present for the effort to be effective? In the recent ruling of 31 July 2020 (case no. KIO 1248/20), the National Appeal Chamber held that contractors are not only required to show the personnel, organisational and technical measures they have taken to remedy past irregularities, but must also show that these measures will prevent similar violations in the future.
Tales from the National Appeal Chamber: Proper self-cleaning by contractors