Public procurement
Public sector entities and other contracting entities indicated in the Public Procurement Law of 29 January 2004 are required to conclude contracts for works, supplies and services with contractors selected under procedures assuring fair competition and equal treatment of contractors. Tender procedures applicable in Poland fully comply with EU procurement directives. A public procurement is a contract of value exceeding EUR 30,000 net. The basic procedure modes are open tender and restricted tender. Other types of procedures may be selected when the procurement meets the criteria provided in the law. Public procurement proceedings must be conducted in compliance with principles of fair competition and equal treatment of contractors.
Actions and decisions taken by the contracting authority during the course of a proceeding for award of a public contract can be challenged by way of an appeal. Appeals are filed with the President of the National Appeal Chamber within the times indicated in the law, basically 5 or 10 days. The law provides legal remedies for contracting authorities, bidders, and others who have an interest in obtaining a contract or who may suffer a loss as a result of violation of the Public Procurement Law by the contracting authority. Certain recognised organisations are also entitled to pursue legal remedies objecting to contract announcements or terms of reference.
An appeal may be filed against actions of the contracting authority during a procurement proceeding in violation of the law, or for failure to take required actions. An appeal must be filed in writing, or electronically with a secure electronic signature verified by a valid certificate. The appeal must indicate the contracting authority’s act or omission that is contrary to law and set forth a brief statement of allegations, factual and legal circumstances, and the relief demanded. The contracting authority may then file a response. When filing an appeal, a filing fee must be paid in an amount that depends on the value and the subject matter of the procurement. The appeal must enclose proof of service of a copy of the appeal on the contracting authority in a manner enabling it to review the content of the appeal prior to the deadline for filing the appeal.
Apart from the contracting authority and the appellant, other entities may participate in the appeal if they file a notice of joinder within 3 days after the contracting authority notifies them that the appeal has been filed. The notice of joinder must state which side of the appeal the party is joining.
By law the National Appeal Chamber has 15 days to consider the appeal. This is just an instructive term, but in practice the appeal procedure currently lasts around two weeks from filing the appeal. This means that the procedure, including presentation of evidence, is very focused. It is common for the ruling to be issued after only one hearing. If there are no grounds for rejecting the appeal, the chamber will schedule a hearing. The appeal may be upheld or denied in the form of a judgment; any other ruling is in the form of an order.
A petition to set aside a ruling of the National Appeal Chamber may be filed with the regional court for the registered address of the contracting authority. The petition must be filed within 7 days after receipt of the ruling of the chamber together with the justification. Nonetheless, as soon as the ruling of the National Appeal Chamber is issued, the contracting authority may conclude a contract with the selected contractor, even if the appeal concerns selection of the most advantageous offer. Only the President of the Public Procurement Office has the right to file a cassation appeal against the final ruling by the regional court.