After over one year of vacatio legis, a new public procurement law (PPP) entered into force.
In the new Public Procurement Law Act 2019 In particular, the following benefits are provided for the SME sector:
- full electronicisation of orders via the purchasing platform, with the official e-Procurement platform to be fully implemented by April 2021; (see also https://ezamowienia.gov.pl/pl/i https://miniportal.uzp.gov.pl/)
- the introduction of the principle of efficiency;
- introducing in EU tenders an analysis of the needs and requirements of the contracting authority and reports on the execution of the contract;
- simplifying the procedure in proceedings above and below the EU thresholds (introduction of a new basic mode);
- balancing the parties in public procurement agreements, inter alia, by laying down rules for the development of contracts and mandatory contractual terms;
- introduction of a catalogue of abstract clauses (e.g. ban on disproportionately high contractual penalties compared to contract value). The full catalogue of prohibited contractual terms is formulated in Article 433 the new Ppp Act.
- introducing new rules on the valorisation of remuneration;
- introducing an obligation to apply advances or partial payments in contracts above 12 months;
- reducing the burden of security or contractual security;
- give the Ombudsman a similar right to those which are included in the list of organisations entitled to bring legal protection measures;
- the introduction of new dispute resolution options before the arbitration court at the Attorney General of the Republic of Poland.
Principle of efficiency
The previous catalogue of public procurement rules has been enriched with a new principle, i.e. the principle of economic efficiency referred to in Article 17(1)(1)(2) the new Ppp Act.
This principle constitutes an obligation to award a contract in such a way as to ensure both the best quality of the subject-matter of the contract (supply, services and works) in relation to the measures which the contracting authority may allocate to its implementation and the best ratio of expenditures to effects, including social, environmental and economic effects.
The Contracting Authority shall take this principle into account when determining the contract terms, in particular as regards the description of the subject matter of the contract, the conditions for participation in the procedure and the criteria for assessing tenders.
Analysis of needs and requirements
According to Article 83(1) the new Public Procurement Ordering Act, before the opening of the procurement procedure, shall analyse the needs and requirements, taking into account the type and value of the contract.
According to section 2 the above analysis includes in particular:
exploring the possibility of meeting identified needs using own resources;
market perception:
- as regards alternative means of meeting identified needs,
- in terms of possible options for performance of the contract or indicates that there is only one possibility of performance of the contract.
Content Article 83(3) the new Act Pzp analysis of needs and requirements should indicate:
- indicative value of the contract for each of the specified options referred to in section 2 point 2 point (b);
- the possibility of dividing the contract into lots;
- the envisaged procurement procedure;
- the possibility of taking into account the social, environmental or innovative aspects of procurement;
- the risks associated with the procurement procedure.
The provisions of the new law do not specify the form in which the analysis should be carried out. They only indicate certain fixed elements to be considered in the analysis of needs and requirements. In addition, the analysis of needs and requirements does not have to be prepared in the form of a separate document prepared solely for the provision in question.
Wadium in new Pzp law
According to Article 97(1) the new Pzp Act, relating to classical procurement procedures with a value equal to or above the Union thresholds, the contracting authority may require contractors to lodge a security.
This means that the request to lodge a security in these proceedings is optional and depends on the decision of the contracting authority.
The same is true in classical procurement procedures with a value below the EU thresholds (to which under Article 266 the new Pzp Act applies the above provision on the security deposit, as well as in sectoral procurement (Article 362(1) Act Pzp).
This means that regardless of the value and type of contract and the procedure of the procedure, the contracting authority is not obliged to request a security.
The amount of the security in procurement procedures with a value equal to or exceeding the Union thresholds may not exceed 3% contract value (Article 97(2) the new Act Pzp).
The situation is different in proceedings with a value less than the Union thresholds, in which according to Article 281(2)(10) the new Pzp Act may specify the amount of the security not exceeding 1.5% the value of the order. These provisions apply, of course, if the contracting authority provides for the obligation to lodge a security.
The new Pzp Act therefore makes the maximum amount of the security dependent on the value of the contract.
In proceedings with a value of less than and equal to or exceeding the thresholds, the Union contracting authority shall immediately recover the security, but not later than the time limit 7 days from the date of the occurrence of one of the circumstances mentioned in Article 98(1) the new Act Pzp, i.e.:
- the expiry of the time limit for binding the tender;
- the conclusion of a public contract;
- the cancellation of the award procedure, except where an appeal for the annulment has not been resolved or the time limit has not expired.
Repayment of the security in the above cases does not require any action by the contractor and should in principle take place immediately, but no later than the time limit 7 days from the date of the occurrence of one of the above circumstances.
Rule Article 98(2) the new Pzp Act defines the situations in which the contracting authority is obliged to return the security immediately, but no later than the time limit 7 days from the date of submission of the request for repayment of the security by the contractor:
- which has withdrawn the tender before the closing date for the submission of tenders;
- whose tender has been rejected;
- after the selection of the most favourable tender, except for the contractor whose bid has been chosen as the most favourable;
- after the procedure has been annulled, where an appeal has not been decided on or the time limit has not expired.
The applicant’s request for repayment of the security in these situations will be tantamount to a declaration of no interest in continuing to participate in the proceedings.
In the absence of an application from the contractor, the contracting authority shall not be obliged to reimburse the security until the circumstances mentioned in Article 98(1) the new Ppp Act.
In the legal state applicable to 31 December 2020 the contracting authority was obliged to return the security of its own motion without the contractor’s request) immediately after the selection of the most favourable tender or cancellation of the procedure.
Under the provisions of the new Pzp, the contractor who wishes to recover the bond already at this stage of the procedure must refer the application to the contracting authority.