Poland: Amendments to public procurement law in view of draft “Anti-Crisis Shield 4.0”

A draft version of the so-called “Anti-Crisis Shield 4.0” has just reached the parliament (the “Draft Bill”). It introduces further amendments to the existing special purpose act, including ones that concern the public procurement law (“PPL”).

The Draft Bill amends the Act of March 02, 2020 on Special Solutions Related to Prevention and Combating of COVID-19, Other Infectious Diseases and Crisis Situations Arising from them (the “Act”).

Below you will find a summary of the suggested changes.

INITIATION OF PUBLIC PROCUREMENT PROCEDURE

Article 40 section 1 of PPL is about to change – when commencing an unlimited public procurement procedure, the contracting authority will no longer be obliged to place a relevant notice at a publicly available location within its registered office. It will be enough to publish it at the website. Other announcement-related obligations (the requirement to send a notice to the Public Procurement Bulletin and the European Union’s Publication Office) will remain unchanged.

EMPLOYEE CAPITAL PLANS

Article 7 of the Employee Capital Plans Act of October 04, 2018 has been modified, so that employee capital plan management/maintenance agreements will not be governed by the Public Procurement Law Act of September 11, 2019 (the “New PPL”) if the contract value is lower than the EU thresholds. The amended article 7 will become effective as of January 01, 2021.

AMENDMENTS TO AGREEMENTS

1. The Draft Bill entails automatic amendments to the agreement in case – after determining that circumstances related to COVID-19 affect proper performance of the agreement – the contracting authority (in cooperation with the contractor) introduces the amendment referred to in article 144 section 1 item 3 of PPL.

2. Voluntary nature of amendments
In case it is found that circumstances related to COVID-19 may affect proper performance of the agreement, the contracting authority may (in cooperation with the contractor) amend the agreement in accordance with article 15r section 4 of the Act, i.e. (i) change the completion date for the contract or its part, or temporarily suspend the performance of the agreement or its part; (ii) change the manner of performance of deliveries, services or construction works; (iii) change the scope of the contractor’s services, and introduce a corresponding modification of the contractor’s fee or the manner of its settlement – as long as the increase in the fee, caused by any subsequent change, does not exceed 50% of the initial value of the agreement.

CONTRACTUAL PENALTIES

1. Contractual penalties.
During the state of epidemic threat or the state of epidemic, and for 90 days after its end, the contracting authority cannot set off the contractual penalty related to non-performance or improper performance of the agreement against the contractor’s fee or other claims, and cannot seek satisfaction from the performance bond – as long as the event in relation to which the contractual penalty has been stipulated took place during the state of epidemic threat or the state of epidemic.

2. Period of prescription.
During the state of epidemic threat or the state of epidemic, and for 90 days after the end of the later state, the period of prescription for the contracting authority’s claims (for payment of a contractual penalty) and the validity term of a performance bond do not start to run; if a given time limit has already started running, it becomes suspended. The expiration of the time limits discussed above can occur no earlier than 120 days after the end of the later of the aforesaid states.

ADVANCE PAYMENTS AND PARTIAL PAYMENTS

The contracting authority will be paying the fee in instalments – after performance of a specific part of a public contract, or may pay advances towards the contract performance – in case of public contracts executed for a term of over 12 months. In such case, the contracting authority:

1. shall specify (in the agreement) the percentage of the total fee, due for the completion of specific parts. The final part of the fee can be no higher than 50% of the total fee due to the contractor;

2. shall specify that the advance payment can be no lower than 5% of the fee due to the contractor;

3. shall specify that in case of construction works agreements covering a term of over 12 months, with respect to which the contracting authority intends to make payments in instalments, the contracting authority may indicate (in the terms of reference) the value of the final part of the payment, which can be no higher than 50% of the fee due to the contractor.

BID SECURITY

The requirement to provide a bid security will be voluntary in nature, irrespective of the contract value.

PERFORMANCE BOND

1. In general, the contracting authority may require a performance bond: (i) corresponding to 5% of the total price specified in the bid or the maximum nominal value of the contracting authority’s obligation resulting from the agreement; or (ii) corresponding to 10% of the above – if justified by the scope of the order, or by the risk related to the contract performance, as detailed by the contracting authority in the terms of reference.

2. The contracting authority can make a partial return of the performance bond after the contract has been partially performed, as long as such possibility is covered by the terms of reference.

It is also worth noting that the National Appeals Chamber resumed its operations.

At https://www.uzp.gov.pl/strona-glowna/slider-aktualnosci/zasady-bezpieczenstwa-w-krajowej-izbie-odwolawczej/zasady-bezpieczenstwa-w-krajowej-izbie-odwolawczej you can check the applicable safety rules. The key ones are as follows:

• no more than 10 people at a time are allowed in the main hall, next to the Chancellery of the Public Procurement Office and the National Appeals Chamber;
• no more than 6 people at a time are allowed in the corridors leading to the courtrooms;
• no more than 1 person at a time is allowed in the toilets;
• anyone visiting the National Appeals Chamber will be obliged: (i) to disinfect their hands upon entering the building (before getting into an elevator) and before entering a courtroom (disinfectants and soap are provided by the National Appeals Chamber); (ii) to have their temperature taken before entering a courtroom; (iii) to observe the social distancing principles, i.e. to keep a distance of at least 2 meters from others; (iv) to have and properly use personal protective equipment that allows one to cover their mouth and nose; (v) to wear disposable protective gloves.

We are ready to assist you in evaluating your particular situation. Please feel free to contact us any time by email or telephone.