The Public Procurement Authority has published a communication on the direct application of the new procurement directives until the Polish rules have been amended

The new EU directives on public procurement and utilities procurement rules (Directives 2014/24/EU and 2014/25/EU) entered into force on 18 April 2016. All EU member states were obliged to implement the new rules into their national legislation by that date. However, Poland has not met the implementation deadline. The Parliament is still working on the amendment to the Polish Public Procurement Law (the “PPL”) aimed at the implementation of the new EU rules.

The delay may have serious implications on public procurement proceedings initiated on or after 18 April 2016.

The Polish Public Procurement Authority (the “PPA”) has just published its opinion on the correct application of the public procurement rules until the adoption of the amendment to the PPL (https://www.uzp.gov.pl/aktualnosci/test).

According to the PPA:

• if the estimated contract value does not exceed the EU thresholds (i.e. in tenders not covered by the EU procurement rules) the contracting entity should apply the current provisions of the PPL; and at the same time
• if the estimated contract value equals to or exceeds the EU thresholds (i.e. in tenders covered by the EU procurement rules) the contracting entity should apply the current provisions of the PPL and the rules of the new directives, which have a direct effect in Poland.

There is no exhaustive list of the rules of the new directives which have a direct effect and should be directly applied until the implementation. However, the PPA proposed a list of regulations that, in its opinion, should be applied in the current situation. In any case, according to the PPA, the contracting entities are obliged to apply the rules of the new directives that are precise and unconditional and create the rights of individuals against the state.

The PPA also stated that from 18 April 2016 all economic operators, who take part in tenders covered by the EU rules, may use the European Single Procurement Document (the “ESPD”). The ESPD is a standard form document which contains a statement of the economic operator that it fulfils all the conditions to participate in the proceedings and is not subject to exclusion from the tender. The ESPD replaces the previously required certificates and documents, which – as a rule – will now only be required from the winning bidder.

The correct application of the new directives’ rules is especially significant in public procurement proceedings where EU funds are involved. If the new rules are not applied correctly, there may be a risk that the EU funds are improperly used which could lead to EU institutions requesting the repayment of the funds.

Despite the PPA’s recent communication, the current legal status, as applicable to the tenders initiated after 18 April 2016, is to a certain extent a grey area and the possibility of the direct application of certain provisions of the EU procurement directives has to be carefully considered in each particular case. The current unclear situation will change once the new rules are implemented into the PPL.

We are monitoring the legislative process relating to the implementation of the EU directives in Poland and will provide relevant updates.