Public tender requirements

In what appears to be record time, the Act took effect after being signed into law only 35 days earlier. Historically, the lag time between signing and enactment has been several months, if not longer. The Act not only introduces new threshold amounts at which certain tender requirements kick in, but also introduces new provisions based upon EU regulations. The Act, in general, applies to all public contracts in excess of €6,000 (zł.28,200) in value, including for example, those awarded by state and local governments, co-operatives, public health care centers and any other entities which use public funds to finance at least 50 percent of a given project. The scope of state entities required to apply the Act in awarding public contracts has been both broadened and limited. On the one hand, state agencies that do not have 'legal personality' are now subject to the Act, such as national forests. In a surprising twist, defense related purchases, in contrast, are no longer subject to public tender requirements. Moreover, contracts related to the performance of an international obligation, labor and real estate transactions are similarly exempt from the Act. As before, public contracts may be awarded by one of six tender procedures, depending on the value and nature of the tender. The six include (1) public tenders, (2) limited tenders, (3) two-stage tenders, (4) competitive negotiations, (5) price inquiries and (6) open orders. Additionally, the Act now provides for awarding public contracts by auction via the Internet for specific categories of public tenders, by submitting bids to the public agency's web site. Generally speaking, public contracts involving the sale of goods or services up to €60,000 (zł.282,000) (previously €30,000 - zł.141,000) in value may utilize simplified tender procedures, and thus avoid the need to follow all public tender requirements, including the need to post a bid deposit. EU regulations require that public tender announcements are published in the Official Journal of the European Union if the value of such tender exceeds €130,000 (zł.611,000) with respect to the sale of goods or services and zł.23,500,00 (€5,000,000) with respect to construction services. The Act now includes this requirement as well. Another change introduced by the Act allows the public agency administering the tender a certain level of discretion to utilize the limited tender procedure as opposed to the formal public tender, regardless of the value of the contract. Previously, unless the nature of the contract was limited to only a few bidders with a specific expertise, the public tender procedure was applied for all contracts in excess of €30,000 (zł.141,000)in value. The limited tender procedure restricts the tender to those suppliers or contractors who are able to meet specific eligibility requirements set by the terms of the tender. Also, the Act establishes new deadlines in which different tenders must remain open. Tenders worth up to €60,000 (zł.282,000) must remain open for at least 15 days. Tenders in excess of €60,000 (zł.282,000) must remain open for at least 52 days following publication in the Public Procurement Bulletin. The timeframes are somewhat shorter for limited tenders. The Act also attempts to level the playing field between Polish- and EU-based entities bidding on a public tender. Polish entities will no longer receive preferential treatment compared to their EU counterparts, as was the case under the previous regulations. Non-EU based entities, however, may find themselves at a competitive disadvantage. Another significant change introduced by the Act includes the right of appeal, regardless of the value of the tender. Previously, appeals were limited to those tenders in excess of €30,000 (zł.141,000). Additionally, in contrast to the former regulations, a bidder will be entitled to correct mistakes in its calculations, mistakes which previously disqualified many bidders. Moreover, if just one bid is received, the tender may continue without the need to cancel the tender or call for a new one, as was the case under the former regulations. Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners. Jakub Biernacki, an associate attorney, assisted with the preparation of this article.