Public Procurement PPL
Public procurement law in Poland
Public procurement is a key form of public sector participation in the economy. According to European Commission data, spending on public procurement accounts for 19% of the EU’s GDP, while in the case of the Polish economy, the share of public tenders in GDP is at least 10%, which amounts to approximately 200 billion PLN. This is how much public contracting authorities spendeach year on goods and services purchased in the public procurement system.
Due to the great importance of public procurement in terms of economic development, the following will present the basic principles of public procurement law in Poland taking into account the provisions of the Act of 11 th September, 2019 Public Procurement Law (i.e., Journal of Laws of 2021,item 1129, as amended) (hereinafter: the Public Procurement Law) and the requirements that foreign contractors must meet in order to compete for public tenders.
A public tender is a contract for pecuniary interest concluded between a contracting authority, i.e. apublic entity, such as a government administration or a local government unit, which purchases goods and services on the market, and a contractor, i.e. an entity which offers works, services or supplies to the contracting authority.
It is the contracting authority that conducts the procedure aimed at concluding a public procurement contract. As a rule, procurement procedures are conducted in writing and in Polish, but under Art. 20 of the Public Procurement Law it is possible, in justified cases, to use one of the languages commonly used in international trade or the language of the country where the tender is awarded.
An important element of such a procedure is the preparation of a tender, which constitutes a statement of intent and includes a proposal to conclude a contract on the terms specified therein. It consists of a number of documents and declarations submitted by the contractor, in accordance with the requirements specified in the documentation for the specific public procurement procedure.
It should be pointed out, however, that before a contractor submits a tender, it is necessary to analyse the contents of the announcement and the Terms of Reference and to verify whether it is possible to meet the expectations of the contracting authority and to execute the contract.
Under Art. 242 of the Public Procurement Law, tender evaluation criteria applied by contracting authorities include the lowest price, completion date, technical parameters or operating cost, but tenderers should be informed of the evaluation criteria and their respective weights.
Under the Public Procurement Law, public tenders may be awarded under a number of differentprocedures, depending on inter alia, whether the value of the tender to be awarded exceeds the EUthresholds or not, and the appropriate mode is determined by the regulations.
Which requirements must be met by foreign contractors?
In this regard, it is necessary to refer to the Treaty on the Functioning of the European Union (TFEU), which contains one of the fundamental principles of the common market, namely the freedom to conduct business throughout the European Union.
According to Article 49 TFEU: ‘Restrictions on the freedom of establishment of nationals of one Member State in the territory of another Member State shall be prohibited within the following provisions’. One of the manifestations of this freedom is the possibility for foreign entrepreneurs toparticipate in tender procedures conducted within the European Union.
If the value of a public contract exceeds the EU thresholds, contracting authorities from all EU member states are obliged to publish a contract notice on the EU portal Tenders Electronic Daily (TED).
In order to find the requirements for entities participating in foreign tenders, it is possible to use the e-Certis search engine to compare the scope of selected documents issued in different countries.
Pursuant to Article 25 of Directive 2014/24/EU of the European Parliament and of the Council of 26 th February, 2014 on public procurement, to the extent specified in the relevant international acts and agreements by which the Union is bound, contracting authorities shall accord to the works, supplies, services and contractors of signatories to those agreements and to the Government Procurement Agreement and bilateral free trade agreements with chapters on public procurement treatment no less favourable than that accorded to the works, supplies, services and contractors of the Union. Thus, contactors from third countries that have not concluded any agreement providing for the opening-up of the EU public procurement market are not guaranteed participation in procurement procedures in the EU and may be excluded from them.
KBZ Law Firm provides legal services in the field of public procurement, including preparation of offer as well as supervision of the course and implementation of public procurement.
If you are looking for legal support in the matters presented above, please do not hesitate to contact us.