Public Procurement 9. April 2020

Poland: Amendments to public procurement law in view of drafted “Anti-Crisis Shield 2.0”

9. April 2020
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Sebastian Pietrzyk
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act legal Poland

A draft of so-called “Anti-Crisis Shield 2.0” has just reached the Sejm (the “Draft Bill”). The Draft Bill contains further amendments to the special-purpose act already in place, incl. ones revising the Public Procurement Law (the “PPL”). Below you will find a summary of the proposed changes.

AMENDMENTS TO PUBLIC CONTRACTS

1.1. It is still possible to modify a contract executed under PPL in terms of deadline, manner of contract performance, scope of services and preclusion of contracting authorities’ liability (incl. those that award utility contracts) for refraining from determination and pursuit of contractor’s financial obligations (e.g. contractual penalties), or for introduction of amendments to contracts – upon the conditions specified in the Draft Bill.

1.2. The Draft Bill expands the list of circumstances (related to COVID-19) which affect or may affect contract performance, of which the parties should notify each other. Based on the Draft Bill, the circumstances will include “other circumstances which prevent or materially hinder contract performance.”

1.3. The circumstances listed in the last version of the Anti-Crisis Shield, as well as the ones proposed in the new version will apply to subcontractors and further subcontractors equally.

1.4. The Draft Bill includes a new provision applicable to contractors based outside Poland which reads as follows: “where a contractor is based or carries out actions related to contract performance outside Poland, the documents issued by relevant institutions in the countries or such contractors‘ statements shall be required instead of the documents referred to in subsections 1 – 5. ”

1.5. The Draft Bill also modifies the rule of amending public contracts in terms of remuneration. The provision currently in effect: “a change of the scope of services provided by the contractor and a corresponding adjustment of the contractor’s remuneration, provided that the increase of the remuneration resulting from each consecutive change is not higher than 50% of the original contract value” will be replaced with the following provision: “a change of the scope of services provided by the contractor and a corresponding adjustment of the contractor’s remuneration or manner of settling the contractor’s remuneration.” This means that an adjustment of remuneration or the manner of settling the remuneration will go hand in hand with the change of the scope of the services – based on the special-purpose act (its former and new version) it is not possible to seek an adjustment of the remuneration (the manner of settling the remuneration) without changing the scope of the services as well.

1.6. Based on the Draft Bill, public contracts will be executed in accordance with the following provision: “During the state of epidemic threat or the state of epidemic and the ensuing travel restrictions, public contracts are executed in written form (or are otherwise null and void) or in electronic form with qualified electronic signature, provided that the contracting authority consents to such manner of executing the contract. ”

1.7. It is expected that the provisions of the Draft Bill will apply to those public contracts which are not covered by the provisions of the PPL.

1.8. The same rules of notification and contract amendment were introduced with respect to offset contracts executed on the basis of the Act on Selected Contracts Executed in Connection with the Performance of Contracts of Fundamental Importance for National Security of June 26, 2014.

1.9. On a side note, it is worth adding that in order to introduce amendments to a public contract, it is necessary for parties to reach an understanding and enter into an amending annex. This means that claims of one of the parties do not automatically lead to amendments. The same is true for changes that could be related to the current COVID-19 threat.

CONTRACTING AUTHORTIES’ LIABILITY

There have been no changes to the provisions involving the preclusion of contracting authorities’ liability, arising from the Liability for Breach of Public Finance Discipline Act, for amendments to a public contract and refraining from determination and pursuit of claims arising from non-performance or improper performance as a result of circumstances related to COVID-19.

NATIONAL APPEALS CHAMBER

1.1. The Public Procurement Office together with the National Appeals Chamber and the Ministry of Development are working on solutions that would allow the National Appeals Chamber to resume hearing appeals.

1.2. Based on the information available on the Public Procurement Office’s website, a temporary procedure has been developed, where the National Appeals Chamber is to issue rulings on the basis of documents provided by the parties, however, further organizational and legislative changes are required for the purpose of implementing this solution.

Given the foregoing, we recommend filing appeals online, using a qualified electronic signature.

We reiterate all our recommendations for contractors and contracting authorities, related to the current situation, as provided in the previous alerts (alert 1 i alert 2).
We are ready to assist you in evaluating your particular situation. Please feel free to contact us any time by email or telephone.

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Sebastian Pietrzyk
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act legal - BSWW legal & tax
About the authors

Sebastian Pietrzyk

Partner

Sebastian advises on public procurement law. He has been handling infrastructure-related projects for more than a dozen years, providing legal advice to entities operating in the energy, road, rail and medical sectors. Sebastian participated in a range of projects as part of preparations for EURO 2012 in Poland (rail and road network modernization, sports stadiums construction and air ports expansion). For over a dozen years, he was involved in modernization projects related to strategic Polish rail lines, the value of which exceeds EUR 5bn. He also advised on the construction of the Świnoujście LNG terminal. He has been successfully protecting his Client’s interests before the National Appeals Chamber (KIO) and regional courts.

Marcelina Daszkiewicz

Partner

She specializes in public procurement law, providing comprehensive services related to tender procedures, which involve preparation and compilation of documents, legal analyses and appeals. Marcelina prepares draft agreements and letters in administrative proceedings, including disputes between beneficiaries of EU funds and relevant institutions. She has several years of experience in legal consulting services for contracting authorities and contractors alike, including their representation before the National Appeals Chamber, which has allowed her to learn about a wide array of problems related to public procurement.

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