public procurement | In Principle

In the proposed new Public Procurement Law, the contracting authority will decide on the obligation to submit a bid bond, regardless of the value of the contract. However, the same restrictive consequences as in the current act are linked with the improper submission of a bid bond, and there are more grounds for retaining bid bonds.

A key element of the proposed new Public Procurement Law is to regulate the protection of personal data collected in the course of procurement procedures. Significant exceptions from the general rules of the GDPR are planned. What should they consist of?

A December KIO ruling dealt with an IT aspect of the qualified electronic signature. A contractor had purchased an electronic signature from a trusted supplier, but despite this, the ESPD signed using the electronic signature was invalidated.

Directive 2014/24/EU of 26 February 2014 on Public Procurement only states that “where a tender is signed with the support of a qualified certificate that is included on a trusted list, the contracting authorities shall not apply additional requirements that may hinder the use of those signatures by tenderers”. Unfortunately, the National Appeals Chamber (KIO) took a different view of the issue.

According to Court of Justice of the European Union (CJEU) case law and EC directives, the principle of proportionality and equal treatment must be observed when selecting contractors in public procurement proceedings. Clearly, the Public Procurement Office and National Appeals Chamber have an obligation to evaluate public procurement proceedings in terms of these principles. However, as complaints about breach of competition regulations in tenders are submitted to the president of the Office of Competition and Consumer Protection (UOKiK), it is not clear whether this institution is required to refer to these principles.

Not all claims relating to performance of a contract are subject to clause 20.1. This clause provides for a severe penalty of expiry of a claim for not giving notice of a claim within 28 days. Above all, most claims for adjustment of pay are not covered by this clause.

The contractor’s explanation of a grossly low price or cost must indicate the specific factors making it possible to offer a low price or cost, supported by evidence. The burden of proving that the price or cost is realistic lies with the contractor. If this obligation is not met, the contracting authority will reject the contractor’s bid.

The approach taken in a Public Procurement Office opinion towards the issue of the form of a non-pecuniary bid bond will mean a lower number of valid bids above EU thresholds, where the bid bonds required are so high that contractors use bank guarantees.

The Public Procurement Law regulates the method of eliminating contractors who do not meet the requirements for such things as integrity (no criminal convictions). The sanction of exclusion from a tender may be imposed on a contractor not for acts committed by the entity, but for acts committed in relation to the activity of a collective entity by natural persons acting on its behalf or in its interest.

There is a general principle that contracting authorities should request explanations when a proposed price, cost, or important components of price or cost seem grossly low and there are doubts about whether the contract can be performed. Art. 90(1) of the Public Procurement Act now no longer defines strict mathematical rules for examining a grossly low price. As a rule, whether explanations are requested from the contractor will depend on how the contracting authority assesses the contractor’s bid.

The European public procurement system is one of the foundations for the functioning of the common market. The principal task of laws in this area is to enable exercise of freedoms guaranteed in international agreements, being in this case unrestricted access to procurement procedures within the EU for contractors based in various member states. To achieve this, EU law not only requires adherence to the principles of a level playing field, fair competition and transparency; it also aims to remove market barriers, including those that are non-discriminatory, but are disproportionate. Regardless of this objective, interpretation and application of public procurement law leads to excessive formalism, rendering procurement procedures unintelligible, and distorting results around which public procurement law revolves.

Compulsory evaluation of the effectiveness of PPP projects, the possibility of obtaining an opinion on the legitimacy of a project carried out under this formula, a PPP test for projects valued at more than PLN 300 million, implementation of PPP projects via a special purpose vehicle owned by a private partner: these are just some of the changes introduced by an act recently signed by the President of Poland.