Anna Prigan | In Principle

A proposal to cut red tape for businesses in Poland could backfire against contractors in procurement appeals.

As of 1 January 2024, the EU thresholds for public procurement and the average euro exchange rate for converting threshold amounts from euros into Polish zlotys have changed.

In public procurement proceedings initiated on or after 22 September 2023, contractors may again submit criminal record certificates according to the residence of the person referred to in the certificate.

At a conference on 30 May 2023, the Polish Public Procurement Law Association presented a report with calls for legislative changes to the Public Procurement Law of 11 September 2019. The act has been in effect since the beginning of 2021, and the experience acquired over two and a half years has allowed practitioners to draw some conclusions and formulate nearly 30 calls for amendments to improve the procurement procedures in Poland. In this article we will analyse one of the proposals.

The European Union has addressed the issue of the impact of third countries, from outside the EU, on the operation of the single market. Next year, the Commission will begin investigating sources of money giving foreign undertakings an advantage, including in public procurement procedures. Subsidised contractors will not get public contracts in the EU if awarding them a contract could disrupt the EU market.

The contracting authority may require contractors to conduct a site visit when justified by the subject matter of the contract. Failure to participate in an obligatory site visit will result in rejection of a bid. Contractors who do not manage to attend the site visit should request a new date for the visit before submitting a bid.

Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.

A contractor is obliged to calculate the bid price fairly and factor in everything that follows from the terms of reference, including typical risks associated with contract performance, so that the bid is realistic and allows for proper performance of the contract. If the bid price appears abnormally low or is otherwise questionable, the contractor must explain it in detail.

For the past two years, public procurement contractors have been forced to invoke force majeure to protect themselves from liability for delays in performance of contracts. We thought everything had been written about force majeure, but the war in Ukraine requires the invocation of force majeure in a different context.

Beginning this year, contracts for local government units in performance of their public duties must be executed using vehicles powered by electricity or natural gas. And when awarding contracts for purchase of new means of transport, all contracting authorities must allocate at least a portion of the funds to green vehicles. The Electromobility Act specifies the subject matter of such procurements, limits and types of vehicles.

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.

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.