public procurement | In Principle

The long-awaited amendment of Poland’s Public Procurement Law was published on 13 July 2016. Most of the new regulations enter into force after a 14-day grace period, i.e. on 28 July 2016. But the effectiveness of some of the changes is postponed because of the need to prepare for their entry into force. And certain issues will continue to be governed by the prior rules.

Poland did not manage to implement the EU’s new procurement directives on schedule, but contracting authorities are required to conduct proceedings in full compliance with EU law.

The proposed amendment to the Public Procurement Law would introduce grounds for excluding contractors not previously recognised under Polish law, but would also expressly depart from the existing restrictive approach to exclusion of contractors. The “self-cleaning” procedure and the optional nature of certain grounds are new solutions.

The proposed amendment of the Public Procurement Law, despite introducing certain changes in the rules for participation by third parties in performance of public contracts, does not resolve all doubts concerning the existing practice. For some of them, it would be helpful to consult the guidelines from a recent judgment of the Court of Justice.

The development of information technology has changed the public procurement system. An amendment will finally be adopted requiring electronic communication between contracting authorities and potential contractors.

One of the most important changes in the Public Procurement Law is introduction of the European Single Procurement Document, which should make it much simpler for bidders to apply for public contracts.

Following Directive 2014/24/EU, the bill to amend the Public Procurement Law seeks to promote innovation in public contracts.

The concept of “in-house procurement,” i.e. a contract awarded by one public entity to another public entity, is already recognised under Polish law, but the amendment to the Public Procurement Law proposes major changes in this area.

The planned amendment to the Public Procurement Law only seems to revise the rules for modification of public contracts. The decisive role will still be played by the rules outlined in the case law of the Court of Justice and codified in Directive 2014/24/EU.

The ban on changing contractors during performance of a public contract is not absolute: the case law and commentaries admit exceptions. One of them is accession to the contractor’s obligation. But is accession always permissible?

Many contractors, including those involved in public projects carried out under the Public Procurement Law, lose sleep over the theoretically harmless instrument provided for in Civil Code Art. 483 and 484. Contractual penalties are reserved for all manner of breaches of contract and in huge amounts. The time has to come to change that.

The nature of the resources that can be presented in a tender to demonstrate a contractor’s economic capacity raises doubts concerning the permissible forms in which economic capacity can be realistically shared. But the latest case law shows that there are actually many different ways for a contractor to make use of the economic capacity of another entity.