PUBLIC PROCUREMENT LAW IN POLAND – A BRIEF OVERVIEW
The public procurement market plays quite a big role in Polish economy. Pursuant to the Annual Report of the President of Public Procurement Office (“PPO President“) on the functioning of the public procurement system in 2015, the number of public contracts awarded in 2015 amounted to 142,262 which were worth about PLN 116.3 billion (approx. EUR 27 billion). Nearly 96% of public contracts were awarded to entities with office in Poland.
The primary regulation on public procurement in Poland is the Public Procurement Law Act (the “PPL“) of 29 January 2004. It is to a large extent determined by European Union law, in particular after the Act Amending the Public Procurement Law Act and Certain Other Acts of 22 June 2016, designed to transpose Directives 2014/24/EU and 2014/25/EU, entered into force on 28 July 2016 (the “Amending Act“).
The subject-matter of the PPL covers public contracts, utilities contracts, contracts in the field of defence and security and contests. The PPL specifies the rules and procedures for awarding the abovementioned contracts and contests, the rules regarding contracts, including modifications thereof, legal remedies, control of the award of public contracts, the liability for breach of provisions of the PPL and the competent authorities with respect to matters addressed in the PPL. Consequently, the PPL constitutes a complex regulation (it is over 130 pages long and contains more than 220 articles) which has been subject to nearly 50 amendments since its adoption in 2004.
The PPL is accompanied by several ordinances issued by the Prime Minister and concerning, for instance, the types of documents that may be requested by the contracting authority from the economic operator and forms in which these documents may be submitted, the average exchange rate of Polish zloty against Euro being the basis for converting the value of public contracts or the rules regarding the procedure for examining the appeals.
The other major acts of law regulating the Polish public procurement system are the Public-Private Partnership Act of 19 December 2008 and the Act on Concession Contracts for Public Works and Services of 21 October 2016. The latter Act transposed Directive 2014/23/EU into Polish legal order.
The PPL does not apply to public contracts and contests whose value does not exceed the PLN equivalent of EUR 30 000. As far as utilities contracts and contracts in the field of defence and security are concerned, the PPL applies to the awarding thereof only when the contract value is equal to or exceeds the EU thresholds.
There are nine procedures for awarding public contracts. The primary ones are open tendering and restricted tendering. Contracting authorities may award contracts by way of a negotiated procedure with publication, competitive dialogue, negotiated procedure without publication, single-source procurement procedure, request for quotations procedure, innovation partnership or by an electronic bidding procedure only under the circumstances specified in the PPL. The PPL provides for special regulations concerning the award procedures for utilities contracts and the contracts in the field of defence and security.
Contract award procedures are generally conducted in Polish, however in particularly justified cases contract authority may conduct them in a language commonly used in international trade or in a language of the country in which the contract is awarded.
4) Legal remedies
The National Appeal Chamber (“Chamber“) is competent for the examination of the appeals lodged in contract award procedures. Each year approx. 3000 appeals are lodged to the Chamber. Proceedings before the Chamber are very fast, i.e. appeals are examined within 14 days (on average) from the date of their submission to the Chairman of the Chamber. The Chamber constitutes a court or tribunal, within the meaning of Article 267 of the Treaty on the functioning of the European Union. The Chamber has already submitted 4 requests for a preliminary ruling to the Court of Justice.
The parties and participants of the appeal procedure may complain to the court against the Chamber’s ruling. In general, the court’s judgement ends the procedure in the case. However, the PPO President is entitled to submit a cassation complaint to the Supreme Court (in practice, he rarely does so – 2/3 times per year).