Steps to win - #4 What should you know about a company secret, a deposit and a validity period of 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 should you know about a company secret, a deposit and a validity period of 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?

#4 What should you know about a company secret, a deposit and a validity period of the offer?

Can a contractor stipulate a company secret?

Yes. If the contractor wants to reserve a company secret in the documents submitted to the ordering party (also known as contracting authority) - regardless of the stage of their submission - they can do so.

However, it is worth remembering that two conditions must be met:

1. together with the provision of such information, the contractors must clearly stipulate that it cannot be made available to third parties;

2. the contractors must demonstrate to the ordering party that the information reserved by them constitutes a company secret (in addition to justifying the need to reserve a trade secret, appropriate evidence must be submitted with it).

At the same time, information containing a company secret, in order to maintain its confidentiality, should be provided in a separate and appropriately marked file.

Finally, we remind you that in public procurement, the principle is the transparency of information provided to the ordering party. Thus, the reservation of a company secret is an exception to the above principle and therefore any deficiencies or errors will work to the detriment of the contractor (the ordering party may, for example, disclose the documents submitted by them).

With the above in mind, we strongly recommend seeking professional legal assistance if you wish to ensure that your information remains confidential and secure in a public tender in Poland.

Does the ordering party always have to request the deposit? Are there any limits on the amount of the deposit?

Requesting a deposit is always a right, not an obligation of the ordering party. It should also be remembered that in the national tenders the maximum amount of the deposit cannot exceed 1.5% of the order value. In the EU tenders the amount of the deposit has not changed and is up to 3% of the order value.

When the deposit is paid in the form of a bank guarantee, insurance guarantee or surety, the ordering party must be provided with the original guarantee or surety in electronic form.

Always carefully read the ordering party's requirements regarding the deposit, contained in the specification of the terms of the order (the commonly used Polish abbreviation is SWZ).

Remember that if you are submitting a bid together with other contractors (as part of a consortium), the deposit in the form of a bank guarantee, insurance guarantee or surety must contain some information indicating the existence of the consortium (even if one of the contractors is to obtain the deposit).

The deposit in cash must be paid into the bank account indicated by the ordering party in the SWZ before the deadline for submitting offers (this means that the ordering party must have the cash in their account before a specific time - if the transfer does not reach the ordering party in time, the offer will be subject to rejection).

Remember that the deposit is not to be joked about, because you will not get a second chance to supplement or correct any deficiencies.

How long should the offer validity period be?

In the PZP, unlike the regulations in force before 2021, the provisions relating to the period of validity of the offer have changed. Firstly, the ordering party will be obliged to indicate the day in the procurement documents until which the contractor will be bound by the offer. Secondly, the maximum period of validity of the offer in EU tenders requested by the ordering party has been extended.

In the current legal order, it is as follows:

1. in the EU tender - no longer than 90 days from the date of expiry of the deadline for submission of offers, with the first day of the period of validity of the offer being the day on which the deadline for submission of offers expires. At the same time, this period may be a maximum of 120 days if the value of the order for supplies or services is equal to or exceeds the PLN equivalent of EUR 10,000,000, and in the case of construction works EUR 20,000,000).

2. the national tender - until the deadline specified in the order documents, no longer than 30 days from the date of expiry of the deadline for the submission of offers, with the first day of the period of validity of the offer being the day on which the deadline for the submission of offers expires.

If the offer is not selected within the offer validity period, the PZP obliges the ordering party to call on the highest rated contractor to express their consent to the selection of their offer after the validity period, under penalty of rejection of their offer.

Remember that if the ordering party requires a deposit, it must be maintained throughout the entire period of the bid validity. If the contractor agrees to extend the bid validity period, they must remember to extend the validity of the current deposit or to submit a new one for the entire extended bid validity period. A situation in which the validity of the deposit at the ordering party's disposal is interrupted cannot be allowed (in which case the sanction is rejection of the bid).

The mere expiry of the bid validity period does not mean that the bid of a given contractor cannot be selected as the most advantageous (only in such a situation will additional consent of the contractor be necessary, as mentioned above).

However, if the contractor is no longer interested in a given public tender after the bid validity period has elapsed, it may terminate its participation in the tender without any consequences.