The ongoing COVID-19 pandemic has forced a number of changes to be introduced to the functioning of the public procurement market in Poland. Please find below some information regarding the actions undertaken and planned in this area.
Exclusion of the PPL application in respect of necessary procurements
The special act on specific solutions related to preventing, counteracting and combating COVID-19, which entered into force on 8 March 2020 (“Special Act”), permits the exclusion of the application of the Public Procurement Law (“PPL”) in the awarding of procurement contracts concerning goods or services indispensable for counteracting COVID-19. Counteracting COVID-19 is broadly understood as and covers any actions related to combating the infection, preventing its spreading, any preventive actions, and combating the effects of the virus. However, the exclusion relates only to situations where it is highly likely that the disease would spread in a fast and uncontrolled manner or where such exclusion is required due to public health protection reasons.
Notwithstanding the above, the Special Act introduced a general exclusion of the PPL application in relation to procurement contracts for services, deliveries or construction works awarded in connection with preventing or combating the epidemic in the territory within which the state of emergency regarding the epidemic or the epidemic state was declared.
The application of the PPL was also excluded in respect of procurements awarded in the event of epidemic threat, in order to perform decisions on creating strategic reserves at the request of a minister competent for health matters.
The PPO encourages contracting authorities to communicate with contractors via means of electronic communication also in public procurement procedures with a value below the EU thresholds, thus also in situations where the PPL does not provide for such obligation. However, contracting authorities should procure that the selected manner of communication does not restrict contractors’ rights.
Furthermore, the PPO presented its position in respect of the manner in which it could ensure transparency of opening bids in view of the COVID-19-related threat. In the PPO’s opinion, in the situation of an epidemic threat, an on-line transmission from opening bids carried out without the participation of the public sufficiently satisfies the transparency rule requirements.
Changes regarding the operation of the National Board of Appeal and the PPO
The National Board of Appeal suspended the examination of appeals in the period between 16 and 27 March 2020. All sessions scheduled for that period were cancelled. Award publications were adjourned in time, with no specific dates provided.
The Public Procurement Office (“PPO”) has also significantly restricted its activity, and specifically in terms of any direct contacts and telephone contacts with interested parties. The operation of the legal telephone hotline was also suspended. In any issues related to the application of the PPL the PPO may be contacted through the means of electronic communication, including electronic mail, at the address: email@example.com.
Further amendments to be adopted
The Polish government plans to introduce subsequent far-reaching amendments aimed at adjusting the public procurement law to the COVID-19 pandemic conditions. These amendments were to be included in the draft bill amending the Special Act dated 25 March 2020, and are to form an element of the so-called anti-crisis shield.
Under the said draft bill, the exclusion of the PPL application is to be extended to cover some procurement contracts awarded by Bank Gospodarstwa Krajowego and the Social Security Institution (Zakład Ubezpieczeń Społecznych).
The bill also contains a regulation pertaining to public procurement contracts under which parties are to immediately notify each other of existing or potential impact of COVID-19 on the proper performance of a given contact.
Having confirmed that COVID-19-related circumstances may affect or actually impact the proper performance of a given public procurement contract, a contracting authority will be able to, in consultation with a contractor, amend the contract, and specifically through: (i) changing the performance deadline or by temporarily suspending its performance in whole or in part, (ii) changing the manner of carrying out deliveries, services or construction works, (iii) changing the scope of performance and (accordingly) the contractor’s fee – provided that the price increase caused by each subsequent change does not exceed 50% of the value of the original contract.
Furthermore, the bill will probably exclude disciplinary and criminal liability for a failure to determine or a failure to enforce amounts due that emerged in relation to non-performance or improper performance of the public procurement contract as a result of specified circumstances related to the COVID-19 occurrence.