Public procurement contracts under the new framework: A clear step toward balancing the parties’ positions
The unique characteristics of public procurements should not impede a balanced allocation of risks between the parties. However, despite efforts by various groups this goal has remained unattainable. The drafters of the new Public Procurement Law have recognised the problems related to the parties’ unequal positions and proposed several remedies.
According to current laws, limits on application of the criterion of lowest price apply only to government and local government contracting authorities. Other contracting authorities are permitted to apply the price as the sole criterion or a criterion of a weighting of more than 60%. Meanwhile, both EU and Polish legislators say that criteria other than price should also be applied more often.
The concept for a new public procurement law suggests changes to ensure greater effectiveness of appeal proceedings and make right of appeal realistic. There will be a specialist court to review the cheaper appeal.
Contracting authorities have to bear in mind that protected personal data are processed in their procedures. Procedure documentation has to comply with new laws now that the GDPR is in effect.
What is the situation regarding power of representation to file the electronic European Single Procurement Document (ESPD)?
Can an ESPD be signed by a contractor representative appointed for a tender using their certified electronic signature, or do persons listed in the relevant register as representatives of the contractor now have a new obligation, to sign an ESPD? Is this measure by the legislature a restriction of competition in tenders?
Notice of a claim is not a sign of hostility towards the other party to a contract. The major changes made in the FIDIC New Contract Conditions published in December 2017 include a clear distinction between claims and dispute resolution.