Types of public procurement procedures

Under the Public Procurement Law, the type of public procurement procedure depends on the value of the contract. In public tenders for EU contracts the following procedures may be applied:

1. open procedure (modelled after the open procedure specified in the Directive),
2. restricted procedure (modelled after the restricted procedure specified in the Directive),
3. negotiated procedure with prior publication, competitive dialogue and innovation partnership (corresponding to the negotiated procedure with prior publication specified in the Directive) and
4. negotiated procedure without prior publication and single source procurement (corresponding to the negotiated procedure without prior publication specified in the Directive).

In public tenders with a value below the EU threshold (domestic contracts) the following procedures may be applied:

1. basic procedure (always with prior publication of a contract notice, combining elements of the open procedure and the negotiated procedure with prior publication),
2. innovation partnership,
3. negotiated procedure without prior publication and single source procurement.

Domestic thresholds determining the type of procurement procedure (below the EU thresholds)

The thresholds for the application of the Public Procurement Law depend on the procedure used for the award of a given contract, as specified in Article 2 of the Law. For regular contracts, the Public Procurement Law (including the rules for the award of contracts) applies if the value of the contract exceeds PLN 130 000 net. Sector contracts and contracts in the area of defence and safety fall under the Public Procurement Law (including the statutory rules for the award of contracts), if their value exceeds the equivalent of the EU thresholds.

Rules for the award of contracts depending on the contract value

Under the Public Procurement Law the contract value does not affect the rules for the award of contracts. The rules for the award of contracts, set out in Articles 16-20 of the Public Procurement Law, i.e. fair competition and equal treatment of contractors, transparency, proportionality, effectiveness, legality, impartiality and objectivity, publicity and written form, apply to the award of all public contracts covered by the Public Procurement Law.

Grounds for exclusion from public procurement procedures

Following the Directive the Public Procurement Law distinguishes between mandatory and optional grounds for exclusion. As a rule, the mandatory grounds for exclusion (specified in Article 108 of the Public Procurement Law) apply to all procedures carried out on the basis of the Law. Article 109 sets out a closed list of optional grounds for exclusion. The grounds (one or more) listed in the article may be used to evaluate if a contractor is not subject to exclusion only if the contracting entity has listed them in the contract notice or procurement documents for a given procedure.

Time limit for the submission of tenders

The time limit for the submission of tenders is determined by the contracting entity, within the minimum time limits specified in the Law. Statutory minimum time limits for the submission of tenders depend on the type of procedure and the contract value. Additional factors that may affect the minimum time limit include: (a) type of contract, (b) prior publication of a contract notice, (c) electronic-only submissions, or (d) urgent and justified need to award a contract within a shortened time limit for the submission of tenders.

In the case of open tenders (within the EU thresholds), the time limit for the submission of tenders specified by the contracting entity cannot be shorter than 35 days after the submission of the contract notice to the Publications Office of the European Union. If tenders are submitted exclusively via electronic means, the above minimum time limit may be shortened by additional 5 days. If a prior information notice has been published (as set out in Article 138 of the Law) or if there is a state of urgency, the time limit for the submission of tenders cannot be shorter than 15 days after the submission of the contract notice to the Publications Office of the European Union.

Different minimum time limits for the submission of tenders apply to the remaining procedures which involve tender submission (for contracts within the EU thresholds). For example, the basic minimum time limit in a restricted procedure is 30 days after the date of the invitation to tender. If tenders are submitted exclusively via electronic means, the above minimum time limit may be shortened by additional 5 days. If a prior information notice has been published (as set out in Article 138 of the Law) or if there is a state of urgency, the time limit for the submission of tenders cannot be shorter than 10 days after the date of the invitation to tender.

In the basic procedure (contracts within the domestic thresholds), the contracting entity determines the time limit for submission of tenders taking into account the complexity of the contract and the time needed for preparation. For supplies and services the time limit cannot be shorter than 7 days after the publication of the notice in the Public Procurement Bulletin, and for works – not shorter than 14 days after the publication of the notice in the Public Procurement Bulletin.

Documents submitted in a public procurement procedure

The list of documents required in a procedure from contractors is specified in the Law or by the contracting entity in the procurement documents and the contract notice. The list may vary depending on whether a contract is within the domestic or EU thresholds.

For example, in an open procedure (contracts with a value equal to or exceeding the EU thresholds) each contractor is obliged under the Law to submit with the tender the European single procurement document (ESPD). If contractors rely on capacities or situation of other entities who make available their resources, they have to submit, together with the ESPD, a statement of the entity providing the resources, confirming that there are no grounds for exclusion of that entity, and confirming that the entity meets the conditions for participation or selection criteria to the extent that such resources are relied on. As a general rule, the obligation to provide means of proof for individual exclusion grounds and individual conditions for participation or selection criteria applies only to the contractor whose tender has been selected as the best one based on the tender evaluation criteria. Such a contractor is obliged to submit the necessary means of proof within the time limit set by the contracting entity, which cannot be shorter than 10 days, and the means must be up-to-date as at the day of submission. A closed list of entity-related means of proof that a contracting entity can request from a contractor is specified in a relevant regulation.

In basic procedures (contracts with a value below the EU thresholds), each contractor has to submit, together with the tender, a statement on the absence of the grounds for exclusion, and on meeting the conditions for participation or selection criteria, to the extent specified by the contracting entity. If contractors rely on capacities or situation of other entities who make available their resources, they have to submit, together with the statement, a statement of the entity providing the resources, confirming that there are no grounds for exclusion of that entity, and confirming that the entity meets conditions for participation or selection criteria to the extent that such resources are relied on. As a general rule, the obligation to provide means of proof for individual exclusion grounds and individual conditions for participation or selection criteria may apply only to the contractor whose tender has been selected as the best one based on the tender evaluation criteria. If the contracting entity stated in the contract notice or procurement documents that means of proof must be submitted, then such a contractor is obliged to submit the necessary means of proof within the time limit set by the contracting entity, which cannot be shorter than 5 days, and the means must be up-to-date as at the day of submission. A closed list of entity-related means of proof that a contracting entity can request from a contractor is specified in a relevant regulation.

Irrespective of the contract value, if the contracting entity requires in the procurement documents that the entity-related documents be submitted (i.e. documents which confirm that the services, supplies or works offered meet the contracting entity’s expectations), for example in the form of a label, a certificate issued by a compliance assessment body or a report on tests done by that body, but also product descriptions or samples, then the contractor submits such documents together with the tender.

Where to find information on tenders (including those below the thresholds)

Information on public procurement procedures is available among others in official public procurement publications. For EU-threshold procedures the information is published by the Publications Office of the European Union in the Official Journal of the European Union. For tender procedures below the EU thresholds (but exceeding PLN 130 000) the information is published in the Public Procurement Bulletin. The Bulletin can be accessed on the website of the Public Procurement Office.

National contact points for public procurement, e.g. hotline operated by the Public Procurement Office.

Sources of information on planned procurement procedures

Under Article 23 of the Public Procurement Law, contracting entities must draw up plans of public procurement procedures foreseen for a given financial year. The plan covers those tenders which are regulated by the Public Procurement Law. It is later published in the Public Procurement Bulletin and on the contracting entity’s website. The plan of public procurement procedures includes in particular the following information: (1) subject matter of the tender; (2) type of tender (works, supplies or services); (3) planned procedure; (4) approximate contract value; and (5) planned time limit for the initiation of the procedure.

Sources of information on how procedures are carried out, including the award of a contract and their implementation

Contracting entities are obliged to publish basic information on an ongoing procurement procedure regulated by the Law on the procedure website. The following information in particular is published on the website:

1. tender specifications,
2. questions as to specifications and replies from the contracting entity,
3. information on the opening of tenders,
4. information on the selection of the most advantageous tender, etc.

Depending on the contract value, the following information is published in the Official Journal of the European Union or the Public Procurement Bulletin:

1. notice of the initiation of the procedure,
2. notice of the outcome of the procedure,
3. notices on changes to the contract.

Additionally, a notice on the completion of the contract is published in the Public Procurement Bulletin, irrespective of the contract value.

Furthermore, an economic operator may request the contracting entity to provide information on the conduct of the procedure and how it is carried out.

 

AREA P3: Reporting irregularities in relation to the tender process

Reporting irregularities in relation to the tender process

• rules for submitting appeals/complaints in a public procurement procedure

An appeal can be lodged if:

• a contracting entity has taken an action non-compliant with the Public Procurement Law in a procurement procedure, conclusion of a framework agreement, a dynamic purchasing system, a contractor qualification system or a contest;
• a contracting entity has failed to take an action required by the Public Procurement Law in a procurement procedure, conclusion of a framework agreement, a dynamic purchasing system, a contractor qualification system or a contest;
• a contracting entity has failed to conduct the procurement procedure or organise a contest pursuant to the Law, even though it was obligatory.

An appeal is lodged with the President of the National Appeals Chamber. An appeal may be filed in writing, or in electronic form, or signed with an electronic signature. The appeal submitted in electronic form must be signed with a trusted electronic signature.

The appeal procedure is carried out in Polish, and consequently all documents must be submitted in Polish. If a document has been drawn up in a foreign language, the translation into Polish must be submitted.

Who can lodge an appeal

An appeal my be lodged by:

• the contractor who had or has an interest in obtaining the contract and suffered or may suffer damage as a result of the infringement of the Public Procurement Law;
• the contest participant who had or has an interest in winning the prize and suffered or may suffer damage as a result of the infringement of the Public Procurement Law;
• organisations entered as organisations authorised to lodge legal remedies in the list kept by the President of the Public Procurement Office, published on the website of the Public Procurement Office;
• Advocate for Small and Medium Sized Enterprises

What are the time limits and restrictions on lodging appeals

If the time limit for lodging an appeal falls on a Saturday or a public holiday, then the time limit expires on the day after the non-business day(s).

The time limit for lodging an appeal against an action taken by the contracting entity:

No.	Subject of appeal	The time limit for lodging an appeal if the contract value equals or exceeds the EU thresholds	The time limit for lodging an appeal if the contract value is below the EU thresholds
1.	Contracting entity’s action, if the information was provided using means of electronic communication	10 days	5 days
2.	Contracting entity’s action, if the information was provided in a manner different than using means of electronic communication	15 days	10 days
3.	Content of the notice initiating the contract award procedure, or contest procedure, or the content of the procurement documents	10 days	5 days
4.	An appeal against actions others than listed in points 1 to 3 must be lodged within the following time limits:	10 days after the day when an entity lodging an appeal learned, or – acting with due diligence – could have learned about the circumstances justifying the appeal	5 days after the day when an entity lodging an appeal learned, or – acting with due diligence – could have learned about the circumstances justifying the appeal

 

The time limits for lodging an appeal against a contracting entity’s failure to comply with a legal duty to act:

No.	Subject of appeal	The time limit for lodging an appeal if the contract value equals or exceeds the EU thresholds	The time limit for lodging an appeal if the contract value is below the EU thresholds
1.	Failure to publish the notice on the intention to conclude a contract, or failure to send to a contractor a notice on selecting the most advantageous tender, or failure to invite a contractor to submit a tender within the dynamic purchasing system or the framework agreement	within 30 days after the publication in the Official Journal of the European Union of the contract award notice, and – in the case of a negotiated procedure or single source procurement – after the publication of the notice of the outcome of the procedure or the contract award notice with the justification of the award of the contract in a negotiated procedure or single source procurement	within 15 days after the publication in the Public Procurement Bulletin of the notice of the outcome of the procedure, and in the case of a negotiated procedure or single source procurement – after the publication of the notice of the outcome of the procedure or the contract award notice with the justification of the award of the contract in a negotiated procedure or single source procurement
2.	Failure to publish the contract award notice or the notice of the outcome of the procedure	6 months after the date of conclusion of the contract	1 month after the date of conclusion of the contract
3.	Failure to publish the contract award notice or the notice of the outcome of the procedure with the justification of the award of the contract in a negotiated procedure or single source procurement	6 months after the date of conclusion of the contract	1 month after the date of conclusion of the contract

 

Where and how irregularities in the tender procedure can be reported

Irregularities in public procurement procedures should be first reported to the authority competent for public procurement, i.e. the President of the Public Procurement Office. There are no restrictions on who can report such irregularities. Information on potential irregularities may be submitted in any form: either in the traditional form (on paper), or in electronic form. The most commonly reported irregularities include requests to carry out an ex-post control of a public procurement procedure. Nonetheless, the Office also examines reports on irregularities during ex-ante controls, carried out before the contract is signed, as well as other reports with information on potential infringements during the procurement procedure. The only requirement for information on irregularities is the provision of detailed data on the procedure where the reported irregularities occurred and on the infringements which may affect the outcome of that procedure. Importantly, under the Public Procurement Law, the President of the Public Procurement Office oversees compliance with public procurement rules, in particular carries out controls of the public procurement process to the extent specified in the Law. It follows that the President of the Public Procurement Office reviews the public procurement process only for its lawfulness, i.e. checks if a procedure has been carried out in compliance with the Public Procurement Law. The Office does not review other aspects of the contract, including in particular, whether the contracting entity was economical, whether the purchases were appropriate, or the entity’s reliability.

Other bodies and institutions where irregularities in public procurement may be reported include supervisors of entities awarding public contracts. For municipalities supervisory authorities are the Prime Minister and province governors, and for financial matters also Regional Audit Chambers. Additionally, considering the competences of other bodies, information on irregularities maybe also reported to:

1. Supreme Audit Office,
2. Regional Revenue Administration Offices,
3. Managing authorities for EU-funded projects,
4. Office for Competition and Consumer Protection in the area of collusive bidding,
5. Central Anti-Corruption Bureau in the case of corruption related to public procurement,
6. Internal Security Agency within the remit of its competences,
7. Committees issuing opinions on breaching fiscal discipline.

 

Public Procurement Office

uzp@uzp.gov.pl