The Public Procurement Law of 11 September 2019,
which came into force on 1 January 2021 (“Law”),
ushered in many changes in the public procurement
regime. One of the underlying assumptions of the
legislators when designing these changes was to
significantly improve the efficiency of public
procurement. The principle is expressly stated in Article
17.1(2) of the Law:
A contracting authority shall award a contract in a
manner that ensures (…) that the best effects of the
contract, including social, environmental, and economic,
are achieved, to the extent that any of these effects are
achievable in the relevant contract, as against the
expenditures incurred.
In what specific changes is the principle manifested? The
principle of efficiency is demonstrated for example in
Article 83 of the Law. Pursuant to the provision, before
a tender is initiated, the contracting authority is
required to analyze its needs and requirements, taking
into account the type and value of the contract. The
contracting authority is under no obligation to satisfy
the above requirement only if the contract is awarded
under the procedure of negotiations without prior
publication or single source procurement. The Law does
not specify the format that such analysis should follow,
indicating merely the information that should be
included in it, as well as its subject-matter. The analysis
of needs and requirements should help the contracting
authority to select the best procedure for conducting the
procurement.
The legislators also relied on the principle of efficiency
when drafting Article 84 of the Law. The provision
allows the contracting authority to conduct market
consultations
before
launching
procurement
proceedings and to advise contractors about its plans
and requirements for the contract. When conducting
consultations, the contracting authority may seek advice
of experts, public authorities, or contractors. This is a
tool that should also assist the contracting authority in
obtaining the information necessary to conduct the
procurement in the most efficient manner.
Under Article 61 of the Law, the legislators have
provided for a requirement that information,
documents, and statements should be exchanged
between the contracting authority and the contractor
using electronic communications. This should significantly
speed up communication between the two parties and
thus increase the efficiency of the whole process.
Last but not least, another significant measure aimed at
improving the efficiency of contract performance is the
requirement to draw up a contract performance report,
should certain specific circumstances occur in the
process. The issue has been regulated under Article 446 of the Law. The contracting authority is required to
prepare the report if the amount allocated to the
contract has increased, contractual penalties have been
imposed upon the contractor, delays in contract
performance have occurred, or if either party has
rescinded (or terminated) the contract in whole or in
part. The report is required to include specific
information as listed under the Law. The purpose of the
report is to avoid similar difficulties in the future and,
what follows, to make the performance of similar
contracts more efficient.
Thus, as becomes evident, the legislators have used a
number of solutions aimed at improving the efficiency
of the public procurement process. Will they be
effective? The Law has not been in effect long enough
to draw any definitive conclusions. Many of the
measures employed rely on the involvement of the
parties to achieve their purpose. Should the parties
treat such measures as the analysis of the needs and
requirements as just another formality to be ticked off,
these measures will not be effective. One should
therefore wait with the final assessment of these
changes to see how the parties to the public
procurement process react to them.
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.