On 1 January 2021, the Public Procurement Law of 11
September 2019, a completely new set of regulations
replacing the previous law of 29 January 2004, came
into force. It contains a number of significant changes
that have transformed the nature of public procurement
and are worth addressing.
The most important change in the new Public
Procurement Law is the addition of the basic procedure
to the list of procedures for awarding contracts with a
value below the EU thresholds. The basic procedure
replaces such tendering procedures as open tendering
and selective tendering, negotiated procedure with
prior publication, competitive dialogue, price inquiry,
and electronic auction. The basic procedure is divided
into three types of procedures: without negotiations,
with optional negotiations, and negotiated.
The basic procedure without negotiations is similar to
open tendering. It can be used when the contracting
authority’s needs can be described in detail at the early stage of initiating the procedure, and there is no need
to conduct further negotiations. Under the procedure,
the contracting authority is required to draw up the
Terms of Reference (“Terms of Reference”).
The basic procedure with optional negotiations allows
for negotiations of the bids submitted, but only if the
contracting authority has provided for such an option.
Here, the contracting authority is also required to
prepare the Terms of Reference, and the negotiations
may not include any items that are not part of the Terms
of Reference.
The third procedure, i.e. the basic negotiated
procedure, differs from the previous two above all in
that the Terms of Reference are drawn up only after
the negotiations. In turn, the negotiations are conducted
at the invitation of the contracting authority and are
preceded by a description of needs and requirements
(but not Terms of Reference) being prepared by the
contracting authority.
There have also been changes to the appeal
procedure. As from 1 January 2021, the regulations
regarding the parties’ attorneys have changed. An
advocate or legal advisor, an employee of the
company, a person managing its assets, and an entity
contracted by the party (if the scope of such contract
includes the subject-matter of the case) may act as an
attorney. The limitation on the scope of the appeal has
also been eliminated. Under the new law, an appeal
may be lodged with regard to any component of public
procurement process.
Some aspects of the complaints procedure have also
changed. The main one is the change to the court
competent to hear complaints. Prior to 1 January 2021,
this was the regional court with jurisdiction over the
contracting authority’s seat or place of residence.
Under the new regulations, the venue has been
integrated, and now all the complaints are heard by
the Regional Court in Warsaw. The deadline for filing
a complaint has been extended, and under the new law
it is 14 days from the ruling service date. Another
equally important change in the complaint procedure is
making the final appeal with the Supreme Court
available to a greater number of entities. Under the
new regulations, not only the President of the Public
Procurement Office but also a party is entitled to lodge
such an appeal. The last difference between the old
and the new regime is the rate of the complaint fee. The
previous fivefold amount of the appeal fee has been
replaced with a threefold amount.
Thus, as becomes evident, changes to the Public
Procurement Law are quite extensive, while this paper
addresses only a few of them. The legislators
undoubtedly seek to make the public procurement
procedure as simple and accessible as possible, as
evidenced by the reduction in the number of procedures
for awarding public contracts, reduction in the rate of
the complaint fee, and the extension of the deadline for
filing complaints. This is seems to be a good overall
direction of modifications, and the new regulations are most likely to meet with the approval of both
contracting authorities and contractors.
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.