Even when work was underway on an amendment to the Public Procurement Law in 2016, there was some controversy surrounding the question of in-house procurement. In late 2017, the National Appeal Chamber rejected the first contracts concluded under the new provisions between local government authorities. It would be unfortunate if at this time a practice emerged in Poland stifling cooperation between public authorities working together to carry out their duties.
A private entity carrying out a project co-financed using EU funds makes use of public money, and therefore is required to comply with rules on fair competition and equal treatment of contractors. Accordance to government guidelines, to do this it should use market research or comply with competition requirements. And if it becomes a contracting authority, it must apply the Public Procurement Law.
A year ago we reported that an amendment to the Public Procurement Law required contractors and subcontractors to hire workers under an employment contract if they fell under Art. 22 §1 of the Labour Code. But it was not clear how contracting authorities could check whether contractors were complying with this requirement without infringing the personal data of the contractor’s staff. These doubts have now been resolved in a joint opinion issued by the president of the Public Procurement Office (UZP) and the Inspector General of Personal Data Protection (GIODO).
During the course of construction projects, issues often arise involving additional work or substitute work. Contractors perceive even minor departures from the original plans as additional work and demand an increased fee, while investors not only expect all their instructions to be followed within the agreed price, but treat any opposition by the contractor as a breach of contract. This dynamic works similarly between the general contractor and subcontractors. But the realities of the real estate development process often require work to be done even when the parties take different views of the work and do not sign a separate contract covering it. Is an additional fee nonetheless owed for performing such work?
The ban on trading in references was supposed to cure the ills of the public procurement market. But every drug has side effects—in this case, disorientation of contractors and absurd conclusions when verifying fulfilment of the conditions for participation in public tenders.
A contractor’s experience means work actually done with the contractor’s involvement: A controversial ruling?
The Court of Justice held in Esaprojekt sp. z o.o. v Województwo Łódzkie (Case C-387/14) that a contractor entering a tender individually cannot rely on the experience of a group of contractors it was a member of in performing another public contract if the contractor was not actively and specifically involved in performance of the contract. The ruling, issued in the context of a Polish tender, is widely regarded in Poland as controversial. But is the conclusion by the Court of Justice requiring experience to be based on actual experience really debatable?