The convenience of the procurement procedure does not justify departing from the law | In Principle

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The convenience of the procurement procedure does not justify departing from the law

A lawyer who wants to win a tender has to face an exam after the bids are opened. It’s like retaking the bar exam, but the contracting authority scores the exam however it likes. Whoever gets the best score wins.

Lawmakers and contractors alike have sought for many years to encourage contracting authorities in Poland to apply a broader range of criteria than just the lowest price. The most recent amendment to the Public Procurement Law (Sejm document 1653, after amendments adopted by the Senate on 7 August 2014) essentially requires contracting authorities using price as the sole criterion for evaluation of tenders to justify this approach.

Properly framing the eligibility criteria and the criteria for evaluation of tenders is particularly important in awarding contracts for intangible services. Market rates for the work of lawyers vary considerably, but the level of services varies accordingly. This does not help eliminate dumping prices, and thus use of price as a criterion for selecting lawyers can lead to significant distortions.

Because legal services are “non-priority” services for procurement purposes, the criteria for evaluation of tenders for legal advice may be determined on the basis of the characteristics of the contractor, such as knowledge and experience.

In a recent case decided by the National Appeal Chamber (KIO 1630/14, 27 August 2014), the chamber approved the right of the contracting authority to give an examination to contractors who had submitted bids in an unrestricted tender for legal services (CPV 79111000 and 79112000). Based on the oral justification, the chamber held that it was legally permissible to conduct an exam after opening of the bids to test the knowledge of the person indicated in the offer. This interpretation of the terms of reference implies that the subject of the performance is to supply people to the contracting authority. This was the line taken by the chamber, which repeated several times that the offer was of the two people indicated therein. But the oral justification for the ruling did not explain how to square with the law the fact that a test constituting an element of the offer, weighted 50% of the evaluation of the offers, could be submitted after the deadline for bids. When announcing the ruling, the chair of the panel mentioned online comments from the market speaking highly of the rules for conducting this tender.

The tender, which was announced by the Ministry of Infrastructure and Development (no. BDG-V-281-49-MWr/14), was indeed commented on in numerous legal sites, but not at all favourably. Unfortunately, the legal community did not enter into any dialogue with the contracting authority. Two entities decided to play by the rules imposed by the contracting authority and joined the appeal on the ministry’s side. But their voice was not heard, because neither appeared for the hearing. The arguments offered by the contracting authority did not show that the terms of reference were consistent with the Public Procurement Law, and considering how the hearing went the reasons for denial of the appeal were unclear. We have to wait for a written justification of the ruling to comment on the case in more detail.

It should come as no surprise that the contracting authority would like the idea of testing the future contractors. After all, the Polish public procurement market is notorious for treating contractors like children always in need of a reprimand.

In this case, however, the contracting authority lacked a bit of much needed reflection. The contract was for services which can be performed only when specific conditions are fulfilled having to do with professional qualifications, a specific educational background, experience and specialisation. Without the specific competencies, the contracting authority is not in a position to evaluate the professional skills of lawyers.

The contracting authority persuaded the chamber that the innovative method of checking the contractors’ skills was required by the suspicion that lawyers would cheat during the tender proceeding. This is a shocking vision on the part of the contracting authority, particularly when it is holding a tender for services performed by persons practising a profession of public trust, admission to which profession requires proof not only of high professional qualifications but also high moral standing. In the dealings between client and lawyer, only the latter’s actions must be guided by rules of professional ethics. Nonetheless, the chamber upheld the use of legally doubtful and non-transparent procedures to verify the lawyer’s honesty.

“It’ll be like the bar exam”—that was how the contracting authority described the tender. But it is not known who will be the examiners and who will draft the questions. The value of licensed advocates and legal advisers will be assessed by unqualified lawyers.

Anna Prigan, Infrastructure & Transport and Public Procurement & PPP practices, Wardyński & Partners