Public procurement regulation and law in Poland

December 2018

1. Where can one find public procurement notifications for Poland?

  • Information about public tenders in Poland may be found in the online version of the Supplement to the Official Journal of the European Union – TED (Tenders Electronic Daily) at www.ted.europa.eu. The website publishes notices of the initiation of tender proceedings for public contracts with a value equal to or above the applicable EU thresholds.
  • Notices initiating tender proceedings for public contracts with a value below the applicable EU thresholds are published in the Public Procurement Bulletin (Biuletyn Zamówień Publicznych) at www.bzp.uzp.gov.pl. The website is only available in Polish.
  • A contracting authority must also publish a contract notice on a website and in a publicly accessible place at its registered office. Contracting authorities may additionally place notices in Polish newspapers with nationwide coverage.

2. What are the relevant thresholds for the applicability of the Public Procurement Law (PPL)?

Thresholds for the application of the PPL:

Application of the PPL rules
(PPL is not applicable below these thresholds)

Supply contracts

Service contracts

Construction works contracts

Basic threshold applicable to public contracts

EUR 30,000

EUR 30,000

EUR 30,000

Utility contracts
(coal and other solid fuel exploration and extraction, crude oil and gas extraction, water, energy, transport, postal services)

EUR 443,000 

EUR 443,000 

EUR 5,548,000

Thresholds for contracts, which require notification to the Publications Office of the EU (“EU thresholds”):

Contracts awarded

Supply contracts

Service contracts

Construction works contracts

By the public finance sector
(with certain exceptions)

EUR 144,000 

EUR 144,000 

EUR 5,548,000 

By entities other than mentioned above, excluding contracts listed in rows below

EUR 221,000 

EUR 221,000 

EUR 5,548,000 

In the utilities sector
(coal and other solid fuel exploration and extraction, crude oil and gas extraction, water, energy, transport, postal services)

EUR 443,000 

EUR 443,000 

EUR 5,548,000 

In the field of defence and security

EUR 443,000 

EUR 443,000 

EUR 5,548,000 

For social services and other specific services in sectors other than the utilities sector 

-

EUR 750,000

-

For social services and other specific services in the utilities sector

-

EUR 1,000,000

-

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?

  • Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authorities are free to choose among the open and restricted procedure.
  • The contracting authorities may choose to award contracts through the negotiated procedure with prior public announcement or the competitive dialogue if at least one of the circumstances listed below has occurred:
    • during the previous contract award procedure under open or restricted tendering all tenders were rejected for one of the reasons listed in the PPL or the contracting authority cancelled the procedure because the price of the most advantageous tender or the tender with the lowest price cost more than the contracting authority intended to allocate to finance the contract and the original conditions of the contract have not been substantially modified;
    • the contract value is below the EU thresholds;
    • solutions available on the market are unable to meet, without adaptation, the needs of the contracting authority;
    • the construction works, supplies, or services include design or innovative solutions;
    • the contract cannot be awarded without prior negotiations because of specific circumstances related to its nature or complexity or the legal or financial make-up, or because of the related risk;
    • where the contracting authority is unable to describe the subject of the contract in a sufficiently precise manner by reference to a specific standard, a European Technical Assessment, a common technical specification or a technical reference.
  • The contracting authorities may award contracts through the negotiated procedure without prior publication of a contract notice if at least one of the following circumstances applies:
    • in a previous contract award procedure under open or restricted tendering no request to participate in the procedure was submitted, no tenders were submitted or all tenders were rejected due to their non-compliance with the terms of reference drawn-up by the contracting authority, or all tenderers were excluded from the procedure and the original conditions of the contract were not substantially modified;
    • a design contest was held whose prize was an invitation to negotiations without prior publication of a contract notice for at least two authors of the selected designs;
    • the subject of a supply contract are products manufactured exclusively for the purpose of research, experimentation, study, or development, which are not used by the contracting authority for the purpose of mass production aimed at establishing market viability or recovering research and development costs;
    • for urgent reasons brought about by events beyond the control of and unforeseeable by the contracting entity, the time limits for the open tender, restricted tender or negotiated procedure with publication of a contract notice cannot be complied with.
  • The contracting authorities may award contracts through the negotiated procedure with only one participant (“single-source procurement”) if, in particular, at least one of the following is met:
    • the supplies, services, or construction works can be provided only by one particular contractor for: (i) technical reasons of an objective nature or (ii) reasons relating to the protection of exclusive rights arising from separate regulations - where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
    • the supplies, services, or construction works can be provided only by one particular contractor where the contract to be awarded concerns creative or artistic activity;
    • a design contest was held and the prize in that contest was an invitation to negotiations through the single-source procurement procedure of the author of the selected design;
    • for urgent reasons brought about by events beyond the control of and unforeseeable by the contracting entity, the contract must be executed immediately and the time limits for other contract award procedures cannot be complied with;
    • in a previous contract award procedure under open or a restricted tendering (i) no request to participate in the procedure or no tenders were submitted or (ii) all tenders were rejected due to their non-compliance with the description of the subject of the contract, or (iii) all tenderers were excluded from the procedure, and the original conditions of the contract were not substantially modified.
  • Slightly different rules apply to procurement procedures in the utilities sector and in the field of defence and security.

4. Which decisions of a contracting authority can be appealed?

  • An appeal can be brought against any contracting authority action that, has been performed in the course of the contract award procedure if it does not comply with the PPL, or against any failure to act if the contracting authority is bound to perform certain actions under the PPL.
  • If the contract value is below the EU thresholds, the appeal is only admissible against:
    • the selection of the negotiated procedure without prior publication of a contract notice, single-source procurement procedure or request for quotations procedure;
    • the determination of the conditions of participation in the procedure;
    • the exclusion of the appellant from a contract award procedure;
    • the rejection of the appellant's tender;
    • the description of the subject of the contract; and
    • the selection of the most advantageous tender.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?

  • If the contract value is equal to or above the EU thresholds, the time limit for lodging an appeal is usually ten days with effect from the day following the date on which the contracting authority’s decision was sent by means of electronic communication, 15 days respectively if sent by post.
  • If the contract value is below the EU thresholds, the time limit for lodging an appeal is usually five days with effect from the day following the date on which the contracting authority’s decision was sent by means of electronic communication, ten days respectively if sent by post.
  • An appeal against the contract notice, and if the procedure is conducted using an open procedure also against the terms of reference, can be brought within:
    • ten days from the date of publication of the contract notice in the Official Journal of the EU or publication of the terms of reference on the website – if the contract value is equal to or above the EU thresholds;
    • five days from the date of publication of the contract notice in the Public Procurement Bulletin or publication of the terms of reference on the website if the contract value is below the EU thresholds.
  • An appeal against actions other than those referred to above should be filed:
    • if the contract value is equal to or above the EU thresholds – within 10 days from the day when the circumstances on the grounds of which an appeal is filed were discovered or could have been discovered with due diligence;
    • if the contract value is below the EU thresholds – within 5 days from the day when the circumstances on the grounds of which an appeal is filed were discovered or could have been discovered with due diligence.
  • Further appeals are precluded after the above time limits have lapsed.
  • The first instance judgment by the National Appeal Chamber (NAC) can be further appealed to the competent Regional Court within seven days of receiving the judgment.

6. How long is the standstill period?

There is a standstill period of:

  • no less than 10 days from the day on which the information on the selection of the best tender was sent, if the information was sent by means of electronic communication, or 15 days, if sent by post, where the contract value is equal to or above the EU thresholds;
  • no less than 5 days from the day on which the information on the selection of the best tender was sent, if the information was sent by electronic communication means, or 10 days, if sent by post, where the contract value is below the EU thresholds.

In some exceptional situations indicated in the PPL, the standstill period does not apply (e.g. if there was only one tender submitted in an open tender procedure).

7. Which review bodies exist?

The review body is the National Appeal Chamber (NAC).
Its decisions can be further appealed to the competent Regional Court.

8. Are there any filing fees for an appeal?

The amount of an appeal registration fee depends on the value and type of contract.

  • In case of supply and service contracts:
    • PLN 7,500 (approx. EUR 1,750) if the contract value is below the EU thresholds;
    • PLN 15,000 (approx. EUR 3,500) if the contract value is equal to or above the EU thresholds.
  • In case of contracts for social services and other specific services, if the contract value is equal to or above the EU thresholds – PLN 15,000 (approx. EUR 3,500).
  • In case of construction works contracts:
    • PLN 10,000 (approx. EUR 2,300) if the contract value is below the EU thresholds;
    • PLN 20,000 (approx. EUR 4,650) if the contract value is equal to or above the EU thresholds.
  • A further appeal against the NAC’s decision is subject to a fee, which amounts to five times the fee paid to the NAC.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

Once an appeal is filed, the contracting authority cannot sign the contract before the NAC has rendered its judgment. Only exceptionally, the NAC may repeal the prohibition to conclude a contract (on the contracting authority’s request).
There is no similar effect when filing a further appeal with a common court against the NAC’s decision.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

A procurement contract may be rendered void (by a constitutive court judgment) if the contracting authority:

  • used the negotiated procedure without publication or single-source procurement in breach of the provisions of the PPL;
  • failed to place the contract notice in the Public Procurement Bulletin or submit it to the Publications Office of the EU;
  • concluded the contract in breach of the standstill period, if this prevented the NAC from examining the appeal before the conclusion of a contract;
  • prevented contractors who were not admitted to participate in a dynamic purchasing system from submitting requests to participate in that procedure or prevented the contractors who were admitted to participate in a dynamic purchasing system from submitting tenders in a contract award procedure conducted within the framework of that system;
  • awarded the contract under a framework agreement prior to the expiry of the standstill period, to the prejudice of the contractors, with whom a framework agreement had been concluded;
  • applied the request-for-quotation in breach of the provisions of the PPL;
  • concluded an in-house procurement contract in the single-source procurement procedure before the lapse of a 14-day stand-still period starting from the day following the publication of the information about the intention to conclude the contract.

If one of the aforementioned situations occurs and a public procurement contract has already been concluded, when examining an appeal, the NAC may:

  • invalidate the contract;
  • invalidate the contract with regard to the unfulfilled obligations and impose a financial penalty in justified cases, in particular when return of benefits provided for under the contract is impossible; or
  • impose a financial penalty or shorten the duration of the contract if it is in the public interest, in particular in the field of defence and security, that the contract is upheld.

The financial penalty which the NAC may impose on the contracting authority can amount up to 10% of the contractor’s remuneration provided for in the contract, taking into account the type and scope of the violation.
When stating a violation of a standstill clause that was not connected with the violation of any other provision of the PPL, the NAC may impose on the contracting authority a financial penalty in the amount of up to 5% of the contractor’s remuneration provided for in the contract, taking into account all important circumstances relating to the award of the contract.
Additionally, the President of the Public Procurement Office (PPO) may apply to the court for the invalidation of the contract if any actions or omissions on the part of the contracting authority, in breach of the provisions of the PPL, had or might have had an influence on the outcome of the tender.

11. To which extend can procurement contracts be amended after awarding?

The parties cannot amend an awarded public procurement contract unless at least one of the following circumstances listed in the PPL applies:

  • modifications have been provided for in the contract notice or in the terms of reference in the form of unequivocal contractual provisions stating the scope, nature and conditions of introducing such modifications;
  • modifications concern the provision of additional supplies, services, or construction works by the contractor that has provided them so far, provided that those supplies, services, or construction works have become essential and all of the further conditions stipulated in the PPL are fulfilled;
  • the need to modify the contract has been brought about by circumstances which a diligent contracting authority could not foresee and the value of a modification does not exceed 50% of the value of the procurement;
  • a new economic operator is to replace the one to which the contracting authority has awarded the contract in the specific circumstances indicated in the PPL;
  • modifications, irrespective of their value, are not substantial in the meaning of the PPL;
  • the total value of the modifications is lower than the EU thresholds and lower than 10% of the initial contract value for service and supply contracts or lower than 15% of the initial contract value for construction works contracts.

In relation to some of the above-mentioned circumstances, the PPL also limits the acceptable purpose or scope of amendments.

12. Is there a mandatory or voluntary use of e-procurement or e-signatures?

The mandatory use of e-procurement came into force on 18 October 2018 and applies only if the contract value is equal to or above the EU thresholds. Since this date, all communication between the contracting authority and tenderers must be electronic and tenders, requests to participate in the procedure and ESPDs will require e-signatures to be valid. Other declarations and documents regarding: (i) the conditions of participation in the procedure, (ii) the selection criteria, (iii) the characteristics of supplies, services, or construction works offered and (iv) the grounds for the exclusion may be submitted as original electronic documents or electronic copies certified with the qualified electronic signature.

Picture of Malgorzata Urbanska
Małgorzata Urbańska
Partner
Warsaw
Agnieszka Starzynska
Agnieszka Starzyńska
Senior Associate
Warsaw
Magdalena Wyszyńska