public procurement

May a contractor whose offer is rejected appeal to the National Appeal Chamber?

A contractor filing an appeal must duly demonstrate that it has standing to appeal under Art. 179(1) of the Polish Public Procurement Law. There is an endless debate in the case law and the legal literature over which entities are entitled to file an appeal in a procedure for award of a public contract. The National Appeal Chamber spoke out in this dispute in its ruling of 23 October 2019 (case no. KIO 2031/19), responding to the question whether a contractor whose bid has been rejected still has a legal interest in filing an appeal.

Tales from the National Appeal Chamber: Consequences of imprecise description of conditions for participation in contract award procedure

In the tender documentation, the contracting authority may require contractors to meet certain conditions for participation. These should be precise and duly described so the contractors can adequately demonstrate their fulfilment. But what if the contracting authority has not precisely defined a condition for participation in the procedure? In its ruling of 3 July 2020 (KIO 1001/20), the National Appeal Chamber held that the interpretation of the condition more favourable to the contractor should be applied.

Securing the payment of taxes may protect against exclusion

If tax arrears are a ground for exclusion under the procurement documentation, exclusion can be prevented by making payment or entering into an agreement with the tax authority. It is worth considering whether providing voluntary security would be an effective way to prevent exclusion.

Tales from the National Appeal Chamber: Meeting the conditions for participation in procurement proceedings and reliance on the capacity of third parties

To meet conditions of education, professional qualifications and experience in a contract award procedure, a contractor may rely on the abilities of other entities. How to do so properly? And can a defective third-party commitment be corrected? The National Appeal Chamber answered that question in its ruling of 13 July 2020 (KIO 1174/20). A contractor who relies on resources of other entities must entrust the performance of the relevant part of the contract to the entity making those resources available.

Abusive clauses under the new Public Procurement Law

Poland’s new Public Procurement Law, which enters into force on 1 January 2021, identifies a set of clauses that cannot be included in public contracts. Will Art. 433 of the new act be regarded as a catalogue of abusive clauses? What types of provisions will be prohibited?

Retention not the same as a security deposit

Despite its similar function, the general contractor’s retention of a portion of a subcontractor’s fee to secure its own claims cannot be equated with a security deposit. Consequently, the investor is jointly and severally liable for payment of such amounts to the subcontractor.