It is one of the key principles expressed in the
Public Procurement Law of 29 January 2004 (“PPL”)
that the public procurement proceedings are
conducted in the Polish language. The principle
finds its embodiment in the strict requirement for
all the documents drawn up by the contracting
entity in the course of the proceedings being in
Polish. This applies to both the basic documents,
such as the public procurement notice, Terms of
Reference (ToR), or the record of the proceedings,
and to the documents reflecting communications
with
the
contractors
(e.g.
clarifications,
amendments to ToR, or requests for clarification
and completion of documents). The question that comes to mind is whether the requirement also
extends to the documents prepared and submitted
by the contractor?
It must be clearly stated that contractors are also
under an obligation to use the Polish language in
the course of the proceedings. The most extensive
document submitted by contractors, namely the
tender, must be drawn up in Polish. A tender
drafted in any other language is rejected by the
contracting entity under the provisions of Article
89(1)(1)-(2) of PPL. In its judgement of 28 March
2013 (KIO 599/13), the National Chamber of Appeal
held among others: If in the course of the public
procurement proceedings, and even more so for
the purposes of substantive assessment of a
tender, a document submitted in its entirety in a
foreign language (other than Polish) were to be
accepted, that would be in breach of the principle
expressed in Article 9(2) of PPL, namely the
principle that public procurement proceedings are
conducted in the Polish language. (…) The absence
of a confirmation of a substantive requirement of
ToR having been met, and without doubt a missing
document in Polish amounts to the absence of such
confirmation, results in a statement of the
contractor having failed to meet the substantive
requirements of ToR.
As regards documents submitted by contractors
alongside the tender, these should also be in Polish.
The case of documents which originally have not
been written in Polish is covered by the provisions
of § 7(4) of the Regulation of the President of the
Council of Ministers of 19 February 2013 on types of
documents that the contracting entity may request
from the contractor and the form in which these
documents can be submitted, pursuant to which
any documents submitted in a foreign language
need to be accompanied by a translation into Polish
made by the contractor. Failure to enclose with the
tender a translation prepared by the contractor
obligates the contracting entity to call upon the
contractor to submit the required translation under
the procedure of Article 26(3) of PPL under pain of
exclusion from the proceedings or rejection of the
tender.
PPL provides for an exception from the Polish-
language principle in the course of the proceedings.
Pursuant to Article 9(3) of PPL, in particularly justified cases, the contracting entity may approve
submission of an application for admission to the
public procurement proceedings of statements,
tender, and other documents also in one of the
languages commonly used in international trade or
in the language of the country in which the
contract is awarded. Such approval should be
included by the contracting entity in ToR.
The principle of the Polish language being used
throughout the public procurement proceedings
extends also to proceedings before the National
Chamber of Appeal. Pursuant to § 19(3) of the
Regulation of the President of the Council of
Ministers on the rules of procedure for hearing
appeals, all the documents are submitted in the
Polish language, and if they have been drafted in a
foreign language, the party and the participant of
the appeal proceedings which seeks to rely on
them, is required to submit their Polish translation.
In justified cases, the adjudicating panel may
request that a translation of a document into Polish
certified by a sworn translator be submitted.
Failure to file translations of foreign-language
documents results in NCA disregarding them when
hearing of the appeal.
The principle of using the Polish language only in
the course of public procurement proceedings and
proceedings before NCA is of high significance for
contractors. As Polish undertakings operate in
foreign markets and foreign contractors participate
in Polish public procurement proceedings,
submission of documents in a foreign language is
virtually unavoidable. Hence, one should always
bear in mind the need to provide translations of
such documents as failure to do so produces grave
consequences.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
legislation or other legal development to the particular facts can be verified.