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New procurement thresholds in 2022
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.
New procurement thresholds in 2022
Tales from the National Appeal Chamber: Key part of the contract—a contractor may challenge the obligation to perform works personally
Requiring personal performance of key tasks is one of the guarantees of proper contract performance. However, contracting authorities must remember that this institution cannot be abused and treated mechanically, without taking into account the specifics of the given procurement. Therefore, contractors may challenge the terms of reference if they believe that the requirements are too stringent and limit their ability to participate in performance of the contract. Such challenges can be effective, as demonstrated by the ruling by the National Appeal Chamber of 13 October 2021 (KIO 2733/21).
Tales from the National Appeal Chamber: Key part of the contract—a contractor may challenge the obligation to perform works personally
Changes in Polish public procurement law
Public procurement is the process by which public authorities – government departments or local authorities – purchase work, goods or services from companies in the market. Recent changes to the public procurement law brought many improvements.
Changes in Polish public procurement law
Tales from the National Appeal Chamber: Grave professional misconduct must be caused by the contractor
When filling in the European Single Procurement Document (ESPD) form, contractors must answer the question whether they have committed grave professional misconduct while performing previous contracts. This question is closely correlated with the condition for exclusion under Art. 109(1)(5) of the Public Procurement Law, which specifies that this concerns violations that are serious and self-caused. Therefore, a contractor does not necessarily have to mention any and all delays or complications that occurred during the performance of previous contracts. In this context, an interesting ruling was issued by the National Appeal Chamber on 4 June 2021 (KIO 1087/21) indicating how this question from the ESPD form should be interpreted.
Tales from the National Appeal Chamber: Grave professional misconduct must be caused by the contractor
When should non-price criteria for bid evaluation be verified?
Some characteristics of the performance offered by a contractor can only be verified at the contract performance stage. But if such non-price criteria are supposed to be considered when evaluating bids, verification only at the stage of contract performance renders these criteria illusory, as the contractors compete on the basis of price anyway. So far, decisions from the National Appeal Chamber have allowed the use of such criteria. But on 18 December 2020, the Warsaw Regional Court issued a judgment holding that the characteristics of the performance offered by a contractor should be verified before selecting the most advantageous bid. Will this judgment change the approach taken by the National Appeal Chamber?
When should non-price criteria for bid evaluation be verified?
Tales from the National Appeal Chamber: Can a discrepancy in a bid price between figures and words be treated as a typographical error?
Sometimes typos occur when preparing bid documents, and can be corrected by the contracting authority if the contractor provides the required clarification. But not all mistakes can be cured, especially those concerning the bid price, as they directly affect the contractor’s position in the ranking. An example of such a mistake is when a price is given in figures and then restated differently in words. The National Appeal Chamber explained in its ruling of 1 June 2021 (case no. KIO 1040/21) why such a mistake cannot be corrected.
Tales from the National Appeal Chamber: Can a discrepancy in a bid price between figures and words be treated as a typographical error?
Tales from the National Appeal Chamber: When can a performance bond exceed 5% of the total bid price or the value of the contracting authority’s liability?
When preparing contract documents, the contracting authority must decide the amount of the performance bond it will demand. As a rule, this security should amount to 5% of the total bid price or the value of the contracting authority’s liability. But when can this threshold be exceeded, and to what maximum value? This and other questions were answered in the ruling of the National Appeal Chamber of 21 October 2020 (KIO 1381/20).
Tales from the National Appeal Chamber: When can a performance bond exceed 5% of the total bid price or the value of the contracting authority’s liability?
Tales from the National Appeal Chamber: Change in the composition of a consortium during competitive dialogue
A two-stage competitive dialogue often extends the procurement procedure to many months. During that time, as a result of various circumstances, changes in the parties to a consortium may occur, often beyond the contractors’ control. In this situation, will the remaining contractors still be entitled to submit a bid, or should they be excluded from the procedure? In its ruling of 22 January 2021 (case no. KIO 3357/20), the National Appeal Chamber held that to avoid negative consequences for contractors, two key conditions must be met.
Tales from the National Appeal Chamber: Change in the composition of a consortium during competitive dialogue
Social aspects of public procurement
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.
Social aspects of public procurement
Claims for procurement damages following Supreme Court resolution III CZP 16/20
In the past, Polish courts took the position that a contractor whose bid was not selected due to a violation of the Public Procurement Law must first file an appeal with the National Appeal Chamber (and possibly a complaint with the state court against the chamber’s ruling), and only then could seek redress from the contracting authority. This discouraged contractors from pursuing claims. A recent resolution by the Supreme Court has changed this situation.
Claims for procurement damages following Supreme Court resolution III CZP 16/20
Tales from the National Appeal Chamber: The specialised nature of medical procurements justifies tougher conditions for participating in tenders
When establishing the conditions for participating in a contract award procedure, contracting authorities often face the dilemma of how to reflect the specific subject matter of the procurement without infringing the principle of proportionality. This task is even harder when the procurement involves specialised medical equipment, where improper servicing could put patients’ life or health at risk. Do such circumstances justify limiting the number of bidders seeking a contract? Yes, the National Appeal Chamber held in its ruling of 29 January 2021 (case no. KIO 3489/20).
Tales from the National Appeal Chamber: The specialised nature of medical procurements justifies tougher conditions for participating in tenders
Tales from the National Appeal Chamber: Protection of trade secrets in public procurement
Trade secrets are a sensitive aspect of public procurement proceedings. They limit the principle of openness of proceedings, but protect sensitive information about the contractor’s business. When granting or denying a request to keep certain information secret, the contracting authority should carefully assess the contractor’s arguments, to prevent abuse of this institution. Despite entry into force of the new Public Procurement Law, this issue is still alive, as evidenced by the recently published ruling of the National Appeal Chamber of 29 March 2021 (case no. KIO 720/21).
Tales from the National Appeal Chamber: Protection of trade secrets in public procurement