Cyprian Herl | In Principle

As the host of the procedure, in the contract documentation the contracting authority should specify the formal and technical requirements for a bid bond. In some procurement procedures, the contracting authority requires contractors to submit a bid bond with a validity extending beyond the bid validity period. In a recently issued ruling, the National Appeal Chamber opined on whether such provisions of the terms of reference are permissible, or are invalid by virtue of law (case no. KIO 3482/21).

The purpose for stating the projected execution costs in the rules for a contest is for contestants to be aware of the contracting authority’s financial capabilities. Contestants should take this value into account when preparing their entries, or their entry will not be considered by the contest jury, the National Appeal Chamber held in its ruling of 10 January 2022 (KIO 3624/21).

Requiring personal performance of key tasks is one of the guarantees of proper contract performance. However, contracting authorities must remember that this institution cannot be abused and treated mechanically, without taking into account the specifics of the given procurement. Therefore, contractors may challenge the terms of reference if they believe that the requirements are too stringent and limit their ability to participate in performance of the contract. Such challenges can be effective, as demonstrated by the ruling by the National Appeal Chamber of 13 October 2021 (KIO 2733/21).

When filling in the European Single Procurement Document (ESPD) form, contractors must answer the question whether they have committed grave professional misconduct while performing previous contracts. This question is closely correlated with the condition for exclusion under Art. 109(1)(5) of the Public Procurement Law, which specifies that this concerns violations that are serious and self-caused. Therefore, a contractor does not necessarily have to mention any and all delays or complications that occurred during the performance of previous contracts. In this context, an interesting ruling was issued by the National Appeal Chamber on 4 June 2021 (KIO 1087/21) indicating how this question from the ESPD form should be interpreted.

Sometimes typos occur when preparing bid documents, and can be corrected by the contracting authority if the contractor provides the required clarification. But not all mistakes can be cured, especially those concerning the bid price, as they directly affect the contractor’s position in the ranking. An example of such a mistake is when a price is given in figures and then restated differently in words. The National Appeal Chamber explained in its ruling of 1 June 2021 (case no. KIO 1040/21) why such a mistake cannot be corrected.

When preparing contract documents, the contracting authority must decide the amount of the performance bond it will demand. As a rule, this security should amount to 5% of the total bid price or the value of the contracting authority’s liability. But when can this threshold be exceeded, and to what maximum value? This and other questions were answered in the ruling of the National Appeal Chamber of 21 October 2020 (KIO 1381/20).

A two-stage competitive dialogue often extends the procurement procedure to many months. During that time, as a result of various circumstances, changes in the parties to a consortium may occur, often beyond the contractors’ control. In this situation, will the remaining contractors still be entitled to submit a bid, or should they be excluded from the procedure? In its ruling of 22 January 2021 (case no. KIO 3357/20), the National Appeal Chamber held that to avoid negative consequences for contractors, two key conditions must be met.

When establishing the conditions for participating in a contract award procedure, contracting authorities often face the dilemma of how to reflect the specific subject matter of the procurement without infringing the principle of proportionality. This task is even harder when the procurement involves specialised medical equipment, where improper servicing could put patients’ life or health at risk. Do such circumstances justify limiting the number of bidders seeking a contract? Yes, the National Appeal Chamber held in its ruling of 29 January 2021 (case no. KIO 3489/20).

Trade secrets are a sensitive aspect of public procurement proceedings. They limit the principle of openness of proceedings, but protect sensitive information about the contractor’s business. When granting or denying a request to keep certain information secret, the contracting authority should carefully assess the contractor’s arguments, to prevent abuse of this institution. Despite entry into force of the new Public Procurement Law, this issue is still alive, as evidenced by the recently published ruling of the National Appeal Chamber of 29 March 2021 (case no. KIO 720/21).

Contractors often take advantage of their stronger negotiating position by imposing terms in subcontracts. The new Public Procurement Law includes Art. 463 to protect subcontractors from unfairly framed contractual obligations. Will subcontractors benefit from the new regulation?

Flawless performance of a public contract is very rare. Therefore, the case law has adopted the principle that contracting authorities may refuse the final handover only if there are material defects. But what is the nature of material defects, and how can the procedure for handover of works be properly defined in a public contract? These issues were recently considered by the National Appeal Chamber (KIO) in its ruling of 1 December 2020 (KIO 2965/20), which additionally took a stand on the issue of allegedly grossly excessive contractual penalties and limits on such penalties.

Municipal waste collection and transport is the subject of many in-house procurements in Poland. Art. 67(1)(12) of the Public Procurement Law provides one of the possible grounds for awarding such contracts, requiring the contracting authority to meet three conditions. But are there really only three? This issue arose in a case in which the National Appeal Chamber had to decide whether the contracting authority must also meet other, non-statutory conditions to properly award a sole-source contract.