New Public Procurement Law in the lower house of Parliament

The draft of the new act, the Public Procurement Law, was adopted by the Council of Ministers and submitted to the lower house of the Parliament (Sejm), where it has been referred to the first reading.

The new extensive legislation is aimed at cleaning up existing regulations and introducing additional solutions to improve the transparency and efficiency of public procurement. The proposed framework contains numerous changes in relation to the currently applicable provisions. The following procedural innovations are worth highlighting:

• the introduction of a new simplified procurement procedure for contracts with a value below EU thresholds – the Polish legislator has provided for a new procedure called the “basic procedure”, under which the contracting authority will have three options to choose from: (i) the basic procedure without negotiations, in which the contracting authority selects the most advantageous tender without the possibility of its negotiation; (ii) the basic procedure with the possibility of negotiating the content of tenders, and (iii) the basic procedure with mandatory negotiations, in which the contracting authority negotiates the content of submitted tenders in order to improve them;
• the introduction of a list of abusive clauses in public contracts – this solution is intended to limit the transfer of all the risks of fulfilment of a public contract to the contractor. Clauses which were considered abusive include provisions regarding the calculation of contractual penalties for the conduct of the contractor not related directly or indirectly to the subject of the contract or its proper performance and provisions regarding the contractor's liability for delays (unless justified by the circumstances or the scope of the contract). It is worth noting that the catalogue is closed and therefore the prohibition will not include other clauses potentially unfavourable to contractors;
• the introduction of an out-of-court dispute resolution procedure in the context of the performance of a public contract – this new solution is intended to ensure that the parties will be able to settle a dispute in a less expensive and faster manner. The use by the contracting authority and the contractor of mediation or other amicable settlement of a dispute is to be optional and last no longer than two months. If the value of the public contract or the subject of the dispute specified in the draft law is exceeded, proceedings are to be conducted before the Arbitration Court at the Polish General Prosecutor's Office and in other cases – by another mediation center.

According to the draft act, the new law is to enter into force on 1 January 2021.