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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
Retention not the same as a security deposit
Despite its similar function, the general contractor’s retention of a portion of a subcontractor’s fee to secure its own claims cannot be equated with a security deposit. Consequently, the investor is jointly and severally liable for payment of such amounts to the subcontractor.
Retention not the same as a security deposit
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
Tales from the National Appeal Chamber: The contracting authority must not abuse a summons seeking clarification of an abnormally low price
Can a summons for clarification of an abnormally low price be used with the aim of obtaining information from the contractor to verify whether the tender complies with the terms of reference for the procurement? What duties must the contracting authority observe, and when can it summon a contractor to provide an explanation? These issues were addressed in a ruling by Poland’s National Appeal Chamber of 16 June 2020 (case nos. KIO 709/20 and 715/20). The chamber considered the specific purpose of the summons for clarification.
Tales from the National Appeal Chamber: The contracting authority must not abuse a summons seeking clarification of an abnormally low price
Modification of contracts and contractual penalties in public contracts under Shield 4.0
As a result of the pandemic, many planned and existing contracts have been paralysed. The uncertain situation forces the parties to cease performing contracts or at least poses barriers to performance. In this situation, can they change the contract? Will they have to pay contractual penalties and damages? The situation now looks somewhat different than it did at the start of the pandemic.
Modification of contracts and contractual penalties in public contracts under Shield 4.0
Tales from the National Appeal Chamber: Does the contractor suffer the consequences of an error in the documentation by the contracting authority?
In procurements, minor errors often creep into the terms of reference or the forms for bids. Can these errors exert negative consequences on contractors? An important statement on this issue was made by the National Appeal Chamber (KIO) in its ruling of 13 March 2020 (KIO 423/20). The chamber stressed that if there are differences between the description of the subject of the contract and the offer form, the description of the subject matter will control, and contractors cannot be penalised for errors committed by the contracting authority in its own documentation.
Tales from the National Appeal Chamber: Does the contractor suffer the consequences of an error in the documentation by the contracting authority?
Tales from the National Appeal Chamber: A contractor does not have to submit documents issued by the contracting authority
The number of declarations and documents submitted by contractors during the contract award procedure forced the Parliament to introduce mechanisms to cut red tape. One of the key provisions in this aspect is Art. 26(6) of the Public Procurement Law, the purpose and practical application of which was explained by the National Appeal Chamber in its ruling of 13 March 2020 (KIO 439/20).
Tales from the National Appeal Chamber: A contractor does not have to submit documents issued by the contracting authority
Public contracts connected with COVID-19 not subject to the rigours of the Public Procurement Law
The pandemic requires immediate response and rapid launch of solutions for combating the coronavirus and its socio-economic impacts. Thus the Anti-Crisis Act includes provisions allowing contracts for fighting the pandemic to be awarded without following lengthy formal procedures.
Public contracts connected with COVID-19 not subject to the rigours of the Public Procurement Law
Modification of contracts and contractual penalties in public contracts in the face of the pandemic
As a result of the pandemic, many planned and existing contracts have been paralysed. The uncertain situation forces the parties to cease performing contracts or at least poses barriers to performance. In this situation, can they change the contract? Will they have to pay contractual penalties and damages? The Anti-Crisis Act comes to their aid.
Modification of contracts and contractual penalties in public contracts in the face of the pandemic
Digitalisation against the crisis
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.
Digitalisation against the crisis