public procurement | In Principle

The “Creditors’ Package,” an overhaul of numerous acts, entered into force on 1 June 2017. Among other changes, it authorises public finance units to conclude settlements when certain conditions are fulfilled. This creates the hope for a more flexible attitude of public entities, open to dialogue with the private sector. But will this actually be achieved?

The regulation on retention of a contractor’s bid bond has not uniformly interpreted. Two different views have developed in the case law and the legal literature on the situations when the contracting authority can apply this sanction.

The joint and several liability of the investor on a construction project for the fees of the subcontractors under Polish law is particularly strict. Thus owners of construction projects should note the statutory solutions (recourse claims by investors and limitations in subject matter and amount introduced in the amended Civil Code) and the permissible use of contractual clauses to soften this liability regime.

The automatic assumption of contracts that occurs in universal succession doesn’t work in the case of public procurement. The contracting authority must decide on the fate of the contract after verifying the new contractor.

Contractors initially declare that they meet the conditions for participating in a procurement, and at a later stage submit confirming documents. This rule applies to all modes for awarding public contracts, but the law provides for certain exceptions.

Following the July 2016 amendment to the Public Procurement Law, contracting authorities must indicate which activities during performance of a public contract fall within the definition of an employment relationship under Labour Code Art. 22 §1. They must also require contractors to hire persons performing those activities on the basis of an employment contract and verify that the contractors are in compliance with this obligation.

The Act on Concession Contracts for Construction Works or Services of 21 October 2016 was signed by the President of Poland and published on 29 November. The act entered into force on 14 December.

The Polish Public Procurement Law does not answer this question, but that is not an absolute bar to changing the form of a bid bond after the bids are opened.

Poland’s National Appeal Chamber (KIO) issued an order on 5 September 2016 of great practical significance, applying new procurement rules on the permissibility of appeals by contractors interested in bidding for public contracts below the EU thresholds.

Based on a recent judgment of the Court of Justice of the European Union, the provisions of the Polish Public Procurement Law permitting reliance on third-party capacity to demonstrate fulfilment of selection criteria are consistent with EU law.

Work on Poland’s new Act on Concessions for Constructions Works and Services is near the end. The act is supposed to enter into force before the end of this year.

The amendment of the Public Procurement Law which entered into force on 28 July 2016 opens up broader possibilities for protecting the interests of contractors in appellate proceedings before the National Appeal Chamber (KIO).