The MUST-HAVE unwritten rules in public tenders in Poland that you need to know

There are certain rules that contractors (economic operators) and contracting authorities (ordering parties) must know in order to get through a public tender unscathed.

Unfortunately, many of these rules cannot be found directly in the Act of 11 September 2019 - Public Procurement Law (PPL or PZP - the last one is a Polish abbreviation commonly used in Poland), because they :

• have been shaped by practice (especially the case law of the National Chamber of Appeal and the Public Procurement Court),

• have been shaped by general principles of legal interpretation, or

• are "deeper hidden" in the PZP.

  
  

However, lack of knowledge of them may have painful consequences, both for contracting authorities and contractors - especially those who are beginners, but not only, because routine has also ruined many expierienced entities.

In this post, we have gathered for you 9 of the most important (from our perspective, of course) rules that are not explicitly written in the Public Procurement Law, without which you really cannot move in a public tender.

Here they are:

RULE NO. 1

DOUBTS ARE INTERPRETED IN FAVOUR OF THE CONTRACTOR

In a nutshell, if a provision, e.g. in the specification of order conditions (SWZ - Polish abbreviation commonly used in Poland), can be interpreted in several ways, the contracting authority must adopt the interpretation that is most advantageous to the contractor. In other words, the contracting authority pays for the lack of precision.

It is worth remembering, especially when, while waiting for offers, the contracting authority provides sparing answers to questions asked by contractors in the style of: "in accordance with the SWZ", "the provision is unambiguous" or "the provision does not apply to the content of the SWZ". This is a very dangerous solution and ultimately, e.g. at the stage of contract performance, the contractor's interpretation may turn out to be a binding interpretation (to the surprise - and sometimes despair - of the contracting authority).

RULE NO. 2

ONLY ONE CHANCE TO COMPLETE YOUR DOCUMENTS

In short, if the contracting authority issues a call for completion a given document, the contractor must respond to it correctly, because it will most likely not receive another chance.

Sending another call for completion the same document, in a situation where the previous call was sufficiently precise (see rule no. 3 below), will be considered as a violation of the Public Procurement Law. This rule also applies to a call for clarification the price or cost of the offer, addressed to the contractor in accordance with art. 224 of the Public Procurement Law.

RULE NO. 3

AS THE CALL IS PRECISE, SO THE RESPONSE IS PRECISE

In short, the contracting authority can expect only from the contractor as it directly indicates in its call (no matter what type of call, e.g. for clarification or for completion). Hence, the contractor cannot be held responsible for responding incorrectly if the call lacked the necessary precision. In such a case, the contracting authority will have to send another call with the corrected content.

It is worth remembering, however, that the contractor, who is usually an entrepreneur, as a professional has a higher standard of due diligence (hence, the content of a given call and the possibility of its proper reading will be interpreted through the prism of this standard).

RULE NO. 4

EXCEPTIONS SHOULD BE INTERPRETED NARROWINGLY

In short, it is an expression of one of the basic rules of interpretation (construal) of legal provisions. When reading a given provision in the Public Procurement Law, you should try to determine what is the principle and what is the exception to this principle. Then, you should be aware that if your legal situation is governed by this exception, you will have to justify very well each case that you refer to.

However, in the event of doubts, they will be interpreted to your disadvantage. For example, the use of a single source-procurement (i.e. buying something without a tender, after negotiations with only one contractor) as an exception to the principle of tendering procurements requires an exhaustive justification.

RULE NO. 5

PRESUMPTION OF "INNOCENCE" OF THE OFFER AND THE CONTRACTOR

In short, a contractor submitting (in good faith) a bid may assume that it is correct and not subject to rejection (as well as that the contractor itself will not be subject to exclusion from the tender). However, if the contracting authority believes otherwise, it will be obliged to prove this by indicating a specific provision of the Public Procurement Law and presenting an exhaustive and credible justification for rejecting the bid and excluding the contractor from the tender.

Lack of precision or logical errors in the justification are a burden on the contracting authority and, as a consequence, may result in the necessity to invalidate the action of rejecting the bid and excluding the contractor from the tender. This rule is closely related to rule no. 6 below.

RULE NO. 6

OBLIGATION TO "RESCUE" THE OFFER

In short, it is the obligation, not the right, of the contracting authority to take corrective, "rescue" actions in relation to a bid that contains some type of irregularities. This is expressed by the procedure for explaining the content of the bid under Article 223 of the Public Procurement Law or the procedure for correcting errors in the content of the bid, referred to in Article 223, Section 2 of the Public Procurement Law.

In other words, explaining doubts or correcting unintentional errors (mistakes) of the contractor is the contracting authority's obligation and only when they cannot be applied in a given case is it permissible to reject the bid (which is of course connected with the necessity to justify this action).

RULE NO. 7

CANCEL OF THE PUBLIC TENDER ONLY AS A LAST RESOLUTION

In short, if the contracting authority decides to initiate a given public tender (in simple terms, invite contractors to participate in it, most often in response to a public contract notice), it will be obliged to continue it until an agreement is concluded with the selected contractor.

However, cancel of such tender will only be possible if a circumstance strictly defined by the PZP occurs and the contracting authority properly justifies it.

RULE NO. 8

FORMALISM OF CONTRACT AWARD PROCEDURE IS NOT A GOAL IN ITSELF

In short, the purpose of applying the PZP is not only its pointless application, but also to make a purchase, thanks to the provisions contained therein, in accordance with the basic principles expressed therein, including the principles of fair competition, equal treatment of contractors, proportionality, transparency and efficiency.

The PZP is a specific act, primarily procedural in nature. Hence, excessive focus by the contracting authority on individual - taken out of context - provisions, without a "bird's eye" view of the entire purchasing process, through the prism of the purpose, can lead to blind, unjustified, formalism and distortion of the idea behind this important and necessary act.

In this context, contracting authorities can breathe a sigh of relief, because not every violation of the provisions of the Public Procurement Law by them will lead to the acceptance of an appeal by the National Chamber of Appeal, invalidation of the contract award procedure or contract, or to liability for violating the discipline of public finances. In light of the wording of the regulations, these are exceptional circumstances, and we interpret them narrowly (see rule no. 4 above :-)

RULE NO. 9

RULE OF COMMON SENSE

In short, the contracting authority will not find in the PZP an answer to every question it asks. Where the legislator does not provide a clear answer (and this is often the case, because each public tender is different), common sense should be used and a rational decision should be made in the given circumstances, especially from the perspective of the public interest.

To sum up, Public Procurement Law is not so difficult, but you need to know the above rules and apply them in practice, wisely!