Steps to win - #2 How to get answers to your questions in a public tender in Poland?

Today we continue a new series of posts (called "Steps to win") on our blog dedicated primarily to contractors who want to participate in public tenders in Poland and win them (previous post you can find on our blog). This time we want to explain to you how to get answers to your questions in a public tender in Poland?

On 1 January 2021, the Act of 11 September 2019 – Public Procurement Law (hereinafter referred to as PZP - this is commonly used Polish abbreviation of this act) entered into force. Despite the fact that a lot of time has passed since the new regulations came into force, we are still faced with questions from contractors (but also, indirectly, contracting authorities who want to help their novice contractors by providing a kind of "PZP application guide") regarding how to participate in a public tender.

In order to meet the expectations of contractors, below (and in the future posts on our blog) we present practical hints (Q&A) for contractors participating in public tenders in Poland. We used as a reference point an open procedure (for orders with a value equal to or higher than the EU thresholds (hereinafter referred to as the EU tender) and a new basic mode, similar to the previous open procedure, without conducting negotiations (for orders with a value lower than the EU thresholds, hereinafter referred to as the national tender).

We hope that our publications will be helpful, especially for contractors from outside Poland, in understanding what a tender conducted in accordance with the Public Procurement Law really is and how to effectively apply for a contract in Poland? At the same time, the aim of our publications will be to present the extensive subject of the Public Procurement Law in the most concise way possible - in the case of issues requiring in-depth analysis, including reference to the case law currently in force, we encourage you to contact us.

#2 How to get answers to your questions in a public tender in Poland?

fter reviewing the procurement documents, the contractor always has the option to contact the contracting authority (i.e. the ordering party) with a request to clarify the content of the document (first of all, the specification of the terms of the contract, i.e. the polish commonly used abbreviation is SWZ) within specified deadlines (details in the table below).

This applies in particular to situations where the provisions of the SWZ are unclear to the contractor, contradict each other, are illegal, or contain solutions that are impossible to apply. This is therefore a practical and free opportunity for contractors to try to legally influence the content of the SWZ.

Contractors should remember that in case of doubts, they should ask the contracting authority, because the principle that in the event of ambiguity in the documentation, all doubts are resolved in favor of the contractor will not always apply.

ATTENTION!!! The language of the procedure is Polish and as a rule you have to ask the contracting authority in Polish too. If you ask the contracting authority in other language (even in English), you may not get any answer to your message!!!

Deadlines for submitting requests to the contracting authority for clarification of the content of the document (SWZ):

The contracting authority may also change the SWZ on its own initiative. Such a change should be made in justified cases and of course before the deadline for submitting offers. Also acting on its own initiative, the contracting authority must extend the deadline for submitting offers if the change in the content of the SWZ:

1. it is essential for preparing the offer, e.g. when the contracting authority has specified the requirements as to the method of executing the order or

2. requires contractors to take additional time to familiarize themselves with the change in the content of the SWZ and prepare their offers, e.g. the scope of changes and explanations is significant and may affect the valuation of the offer.

In such a situation, the contracting authority extends the deadline for submitting offers by the time necessary for their preparation. Of course, if the deadline for submitting offers is not extended, the contractor can always apply to the contracting authority for an extension of the deadline for submitting offers, and also file an appeal to the President of the National Chamber of Appeals (polish abbreviation is KIO).

What is particularly important, in EU tenders, if a change in the content of the SWZ would lead to a significant change in the nature of the public procurement compared to the originally specified ones, in particular if it would lead to a significant change in the scope of the public procurement, the contracting authority is obliged to cancel the procedure (Article 137, section 7 of the PZP).

The content of inquiries (requests for clarification of the content of the SWZ) submitted by contractors together with explanations, without disclosing the source of the inquiry (i.e. the identity of the contractor submitting the question), is made available by the contracting authority on the website of the conducted procedure.

It is worth remembering that the content of the requests and their justification should not contain data indicating a given contractor. This will reduce the risk of accidental disclosure of the source of the inquiry in the event that the contracting authority pastes the content of the inquiry copied in a text editor into the letter with explanations.