According to Court of Justice of the European Union (CJEU) case law and EC directives, the principle of proportionality and equal treatment must be observed when selecting contractors in public procurement proceedings. Clearly, the Public Procurement Office and National Appeals Chamber have an obligation to evaluate public procurement proceedings in terms of these principles. However, as complaints about breach of competition regulations in tenders are submitted to the president of the Office of Competition and Consumer Protection (UOKiK), it is not clear whether this institution is required to refer to these principles.
Not all claims relating to performance of a contract are subject to clause 20.1. This clause provides for a severe penalty of expiry of a claim for not giving notice of a claim within 28 days. Above all, most claims for adjustment of pay are not covered by this clause.
The contractor’s explanation of a grossly low price or cost must indicate the specific factors making it possible to offer a low price or cost, supported by evidence. The burden of proving that the price or cost is realistic lies with the contractor. If this obligation is not met, the contracting authority will reject the contractor’s bid.
The approach taken in a Public Procurement Office opinion towards the issue of the form of a non-pecuniary bid bond will mean a lower number of valid bids above EU thresholds, where the bid bonds required are so high that contractors use bank guarantees.
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.
There is a general principle that contracting authorities should request explanations when a proposed price, cost, or important components of price or cost seem grossly low and there are doubts about whether the contract can be performed. Art. 90(1) of the Public Procurement Act now no longer defines strict mathematical rules for examining a grossly low price. As a rule, whether explanations are requested from the contractor will depend on how the contracting authority assesses the contractor’s bid.