Amendments to Polish public procurement law

Public procurement law regulates all legal aspects connected with public tender proceedings in Poland. The legal acts within this scope also constitutes foundation for the mechanism of spending EU funding. From the latest amendments, the criterion of the lowest price will cease to dominate. What is more, it will be vital to employ contractors on the basis of employment relationship, and it will be possible to order tasks to subsidiary companies without organizing tender proceedings for this purpose.

The Public procurement law act was introduced on 29 January 2004 and has been effective since 2 March of the same year. Therefore, this took place before Poland entered the European Union. From then, the provisions of the act were modified with various legal acts as much as 52 times in total. The amendments were connected with, among other things, the need to adhere Polish regulations to the changing European law.

The latest amendments were passed on 22 June 2016. The vast majority of the provisions entered into force on 28 July – just a few of them will become effective within the next two years. Without a doubt this constitutes the biggest amendments to Polish procurement law in history. The legal act was created due to the requirement to implement two European directives from 2014 into the Polish law. The deadline Poland had for this expired on 18 April 2016.

To tell the truth, Polish legislator was three months late with introducing the amendments, yet it is definitely hard to resist the impression that Polish law currently reflects the European regulations to such an extent that the danger of stopping EU funding is over.

The amendments concern several important aspects. First of all, there are definitely less formalities expected. Greater flexibility with regard to proceedings will be introduced, as well as limitations concerning formal requirements on the stage of submitting bids. A new thing is for example the European Single Procurement Document (ESPD). This will be this document that the tenderers will use to provide a statement it meets the condition of the tender, and the winner will be under obligation to provide a full set of documents.

What is more, the rules on setting the prices in procurement proceedings will change. As a rule – the dictate of the lowest price will be a thing of the past, which till now was giving tenderers major headache. The price is to comprise maximum 60 percent of all criteria. However, there will be an exception to the rule – if an order will include specific quality criteria, the price will be allowed to constitute more than 60 percent. Limiting the price criterion in favour of the quality criterion is certainly a step in good direction. Uncontrolled price war resulting in subcontractor bankruptcies in recent times led to delays, in among other things, the road construction project. The contracting parties should have the right to exclude entities that indicate outrageously low price, and later burden subcontractors with responsibility.

The third change concerns the form of employing workers completing public procurements. The introduced modifications assume that if the economic operators will perform acts meeting the Labour code criteria referring to employees, hiring them on the basis of employment contracts will be obligatory. Fourth, internal public procurement has been regulated – in accordance with the new regulations the contracting party may assign specific tasks to its subsidiary in the situation when over 90 percent of its operations concern the assigned task. A very good example of this is – till now a matter of difference –  garbage collection contracted by local governments. These were the entities that called for amendments in this area.