Key changes in Public Procurement Law
The Public Procurement Law amendment of 29 August 2014 introduces a number of important changes concerning non-price criteria, reliance on third-party capacity, abnormally low prices, trade secrets, grounds for exclusion, bid bond retention and wage indexation.
If contractors aren’t sure, are they required to speak up?
Under some circumstances, questioning the terms of reference in a tender may be treated not only as a right but as an obligation of a professional contractor.
Offers may be evaluated on the basis of a presentation made after opening of the bids
The National Appeal Chamber has held that it is permissible after opening the bids in an unrestricted tender to hold an exam in which the experts offered are evaluated, and for the points awarded on the exam to serve as a criterion for evaluation of the offers.
The contractor must comply with the contract
By signing a public procurement contract, the contractor undertakes to perform the contract not only in compliance with the wording of the contract, but also in compliance with the contractor’s tender and the terms of reference for the procurement. The quality provided by the contractor must meet the expectations of the contracting authority.
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.
The entire consortium is liable for payments to subcontractors
Liability to the contracting authority for payment of subcontractors’ fees is borne by all members of a consortium—even if the subcontract was signed with just one of the members. Amendments to the Public Procurement Law have reinforced this rule.
Public procurement: A new approach to amending the law
The Ministry of Economy, in conjunction with the Prime Minister’s Office and the Public Procurement Office, has begun studying the operation of the public procurement system in Poland to develop recommendations for amending the Public Procurement Law.
A defective bank guarantee does not constitute a bid bond
The failure to identify the guarantor in the wording of the bank guarantee prevents the contracting entity from recognising the bid bond as properly paid. An error of this type cannot be cured by way of interpretation.
Mirella Lechna: The amendment of the Public Procurement Law is not perfect, but it may improve the position of subcontractors
An interview with Mirella Lechna, the partner in charge of the Infrastructure & Transport and Public Procurement practices at Wardyński & Partners, about the recent amendment of the Public Procurement Law concerning subcontractors.
The definition of subcontracting in public procurement
The Public Procurement Law defines what contracts between parties and concerning what subject matter are regarded as a subcontract, and also provides mechanisms protecting the interests of certain subcontractors.
Subcontracting under the amended Public Procurement Law
The content of a procurement subcontract is shaped not only by the intent of the parties, but also by the Public Procurement Law, the Civil Code, the terms of reference for the procurement, and the actions taken by the contracting authority.
The treatment of subcontracting issues in terms of reference
The contracting authority may require in the terms of reference that a portion of the procurement be performed personally by the contractor. Absent such restriction, the contractor may assign performance of even the entire contract to a subcontractor.
