Steps to win - #3 What documents must be submitted by the contractor together with the offer in a public tender in Poland?

Today we continue our 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 what documents must be submitted by the contractor together with the offer 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.

Our previous publications from the series "Steps to win" you have listed below:

#1 Where to find information about the public tender in Poland?

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

#3 What documents must be submitted by the contractor together with the offer in a public tender in Poland?

First of all, remember, you have to read very carefully the specification of the terms of the contract (i.e. the polish commonly used abbreviation is SWZ), which is published on the Internet. Usually SWZ is published on the website indicated by the ordering party (known also as the contracting authority) in the contract notice.

In the SWZ you will find all the necessary information but unfortunately the language of the procedure is Polish and the language of SWZ is Polish too.

For your convenience, we have prepared a list of basic documents submitted with the offer in a public tender in Poland below.

By the deadline for submission of offers, each contractor is obliged to submit:

• Offer – in principle, an offer form, with the price indicated therein for the execution of the public contract in the appropriate form (details in the table below).

• Declaration referred to in art. 125 sec. 1 of the Public Procurement Law. This declaration is evidence confirming the lack of grounds for exclusion and fulfilment of the conditions for participation in the procedure as of the day on which the deadline for submission of offers expired.

  
  

  This document temporarily replaces the subjective means of evidence required by the ordering party (otherwise known as contracting authority). In the case of consortia, this document is submitted by each of the contractors, whereas if the contractor relies on the resources of other entities, it is obliged to submit the discussed declaration for these entities as well. In EU tenders, the above declaration is submitted in the form of a Single European Procurement Document (ESPD), while in national tenders it is a self-declaration (usually the ordering party prepares a template for such a declaration as part of the framework, which is an annex to the SWZ).

  
  

  The contracting authority may stipulate in the SWZ in an EU tender that the declaration in the ESPD form is to be submitted only by the contractor whose offer was assessed the highest, and not by each of the contractors together with their offer (as part of the so-called reverse procedure referred to in art. 139 of the PZP).

• Document confirming the payment of a deposit – if the ordering party requires it.

  
  

  If the deposit is provided in the form of a bank guarantee, insurance guarantee or surety, the contractor shall provide the ordering party with the original of the aforementioned guarantee or surety in electronic form.

• Commitment to provide resources or other subjective evidence confirming that the contractor will have the necessary resources of these entities at its disposal when executing the order.

  
  

  If the contractor plans to use the resources of an entity in a given scope, it must provide this information together with the offer. This is very important, because any delay by the contractor in this scope may cost it a lot. As stated in Article 123 of the PZP, the contractor may not, after the deadline for submitting applications for admission to participate in the procedure or offers, rely on the capabilities or situation of entities providing resources if, at the stage of submitting applications for admission to participate in the procedure or offers, it did not rely in a given scope on the capabilities or situation of entities providing resources.

• Declaration referred to in art. 117 sec. 4 of the PZP – in the case of contractors jointly applying for the award of the contract, a declaration must be attached to the offer indicating which construction works, supplies or services will be performed by individual contractors.

• Subject-related evidence – if the ordering party in the content of the SWZ requested the submission of these documents in order to confirm the compliance of the offered construction works, supplies or services with the required features described in the description of the subject of the order, the criteria for evaluating the offers or the requirements related to the performance of the order, the contractor is obliged to attach them to the offer.

  
  

  If the ordering party has not provided for the possibility of supplementing the subject-related evidence in question, the offer submitted without such documents will be subject to rejection (Article 226, Section 2, Letter c) of the PZP), therefore the SWZ should be read carefully. If the evidence in question is submitted to confirm the criteria for evaluating offers, this document must be submitted together with the offer and there are no exceptions to this rule (Article 107, Section 3 of the PZP).

• Power of attorney or documents confirming the authorization to represent the contractor. The offer should be accompanied by documents confirming the right to represent the contractor, such as an extract from the National Court Register (in Poland known in shortcut as KRS) or the Central Registration and Information on Business (in Poland known in shortcut as CEIDG), or the ordering party should be provided with a link to the above documents so that the ordering party can download the relevant documents themselves. If the offer is signed by persons not disclosed in the extracts from the registers, powers of attorney for these persons should be attached.

Detailed rules regarding the method of preparing and submitting the above-mentioned documents are described in the Regulation of the Prime Minister of 30 December 2020 on the method of preparing and submitting information and technical requirements for electronic documents and electronic means of communication in public procurement procedures or competitions (Journal of Laws of 2020, item 2452).