By Jan Roliński, Advocate, Senior Partner, WKB Wierciński, Kwieciński, Baehr
Legislative processes have begun to overhaul the Public Procurement Law Act to ensure implementation of applicable EU law.
First of all, as has been suggested for a long time, the proposed reform clearly shifts the focus from protecting competition, ensuring transparency and curbing public spending towards strengthening the drivers of development. This is, without doubt, a step in the right direction.
An important change involves modifications to the tenderer capacity verification process. In particular, procurement should become smoother with the implementation of the European Single Procurement Document (ESPD). Obviously, the ESPD application procedure still needs to be fine-tuned, but it seems at the current stage of the legislative process that we can expect these to be reasonable adjustments.
Another key change is designed to strengthen the role of the multi-faceted tender evaluation model. In its current form, the new draft says that contracting authorities can give the price a weight of more than 60 percent only in the case of contracts based on established quality standards. There are serious doubts that this limitation will ultimately find its way into the final version of the law, because imposing a fixed cap at that level seems controversial. Nevertheless, it signals a clear emphasis on non-price criteria that will require increased effort from contracting authorities and, clearly, the proponents of the new law are determined to ensure the Polish system is driven by the best value for money principle, (rather than simply the cheapest option), which would be a welcome change.
Public procurement is also expected to become more friendly, both for contracting authorities and contractors, for example, by encouraging innovation. In addition to a new tender evaluation model, the new law will also regulate such matters as common purchasing arrangements, contract descriptions and division of contracts. An interesting new feature is the possibility of establishing so called “innovative partnerships”.
Other changes worth noting involve contractual amendments and a new, highly controversial, regulation on “in-house” contracts. As regards contractual amendments, the proposed law would specify a list of situations in which contractual amendments are allowed and would define the notion of material change. In terms of the regulations on in-house contracting, although the regulations admittedly copy the relevant provisions of EU directives, very serious concerns have been raised during the consultation process about the impact of the in-house contracting mechanism on the Polish economy.
These are important changes that will affect the operation of the public procurement market. Stakeholders should begin to prepare for the new procurement environment, which, although necessitating a change to many old ways, offers opportunities for all participants.