Mirella Lechna: articles by this author
Requirements set by a financing bank cannot restrict competition in a tender co-financed using EU funds
If a bank denies financing for a contract for rolling stock (or other items subject to a tender) awarded in conformity with the principle of competitiveness because material collateral cannot be established in Poland, the contracting authority is required to award a contract for delivery with financing.
The explanatory memorandum for the draft of the new Public Procurement Law indicates the need to increase the transparency and coherence of national regulations, recognising that the EU’s procurement directives have already been implemented in the Polish legal system. However, the effect of the “small amendment” of 2016 has been unsatisfactory from the very beginning. Hence, the draft contains a number of new solutions justified by the need to reflect the regulations of the procurement directives in the Polish act.
Directive 2014/24/EU of 26 February 2014 on Public Procurement only states that “where a tender is signed with the support of a qualified certificate that is included on a trusted list, the contracting authorities shall not apply additional requirements that may hinder the use of those signatures by tenderers”. Unfortunately, the National Appeals Chamber (KIO) took a different view of the issue.
The Public Procurement Law regulates the method of eliminating contractors who do not meet the requirements for such things as integrity (no criminal convictions). The sanction of exclusion from a tender may be imposed on a contractor not for acts committed by the entity, but for acts committed in relation to the activity of a collective entity by natural persons acting on its behalf or in its interest.
A lot has been published on the harmful effects on the construction industry of the legal solutions proposed in the draft Act on Prevention of Abuses in Road Projects. A disadvantage of the concept of protection of local subcontractors presented by the Ministry of Justice may be to severely limit the General Directorate for National Roads and Motorways’ external financing of projects.
The European public procurement system is one of the foundations for the functioning of the common market. The principal task of laws in this area is to enable exercise of freedoms guaranteed in international agreements, being in this case unrestricted access to procurement procedures within the EU for contractors based in various member states. To achieve this, EU law not only requires adherence to the principles of a level playing field, fair competition and transparency; it also aims to remove market barriers, including those that are non-discriminatory, but are disproportionate. Regardless of this objective, interpretation and application of public procurement law leads to excessive formalism, rendering procurement procedures unintelligible, and distorting results around which public procurement law revolves.