Write to us: kontakt@stowarzyszeniepzp.pl
Write to us: kontakt@stowarzyszeniepzp.pl
In the newspaper Rzeczpospolita, an article titled "The Winding Road to Greater Reciprocity in Markets" was published, written by Ludmiła Kitaszewska, a member of SPZP.
The author discusses the International Procurement Instrument (IZM), emphasizing that its aim is to ensure reciprocity in public procurement markets. This instrument is designed to counteract practices by third countries that limit the access of European companies. The author points out that, although the IZM looks promising, it might have unintended effects on competition. The key is its responsible and non-discriminatory use.
The content of the publication is also available in the electronic version of the daily.
In the "Rzeczpospolita" daily, an article titled "Sustainable Development as a Criterion to Meet" has been published, authored by Dr. Grzegorz Wąsiewski, a member of SPZP.
The author emphasizes the importance of considering ESG in public procurement, analyzes potential challenges and conflicts associated with this process, and presents the legal framework for action in this area in both the European and Polish contexts.
The content of the publication is also available in the electronic version of the newspaper.
On August 31, 2023, the Public Procurement Law Association submitted comments to the Ministry of Development and Technology regarding the draft law on the certification of public procurement contractors and on the amendment of certain other acts.
The Association draws attention to, among other things:
The members of the Public Procurement Law Association suggest, among others, the following changes to the draft law:
The full text of the submitted comments is available at the link.
In the "Rzeczpospolita" daily, an article titled "Orders in the IT Industry and Unconventional Forms of Payment" was published, co-authored by Dr. Jakub Krysa, a member of SPZP.
Orders in the IT industry often take on unconventional forms of payment, which can lead to challenges in classifying these contracts under public procurement law. While some contracts may appear to be free, such as trial versions of software, they can contain hidden mutual services that in fact bring economic benefits. Therefore, it's important to have a precise understanding of the definition of "payment" in the context of the law and an individual analysis of each contract.
The content of the publication is also available in the electronic version of the newspaper.
In the "Rzeczpospolita" daily, an article titled "Minimum Wage and Strikingly Low Price" was published, authored by Paulina Sawicka, a member of SPZP.
The author explains that a contractor, even if they employ personnel based on a contract of mandate or a B2B contract, cannot offer an hourly rate lower than that stipulated by the applicable regulations. An important point is that the latest KIO ruling reverses the previous practice, whereby the obligation to include the minimum wage or rate in costs only applied to employment under a contract of employment. Now, the ruling emphasizes the importance of the statutory minimum wage, regardless of the type of contract.
The content of the publication is also available in the electronic version of the newspaper.
An article titled "Public Procurement: Can a Power of Attorney be Supplemented?" has been published in the Rzeczpospolita daily, co-authored by Tomasz Zalewski, a member of the SPZP Audit Committee.
The article discusses the issue of supplementing power of attorney within public procurement. Since 2019, the Public Procurement Law allows for the supplementation of deficiencies in the power of attorney during the appeal process. However, the law does not specify what deficiencies in the power of attorney can be supplemented.
The case law practice of the National Appeal Chamber shows that supplementing the deficiencies in the power of attorney when submitting an application is only possible when the correct power of attorney was mistakenly not attached to the application. In cases where the power of attorney was not attached to the application, supplementing deficiencies is impossible.
The authors of the article question this interpretation of the regulations, arguing that it does not directly follow from their content.
The content of the publication is also available in the electronic version of the daily.
An article titled "What's with these facilitations in public procurement law?" has appeared in the Rzeczpospolita daily, authored by Wojciech Merkwa, a member of the SPZP Board.
The article discusses controversies surrounding Article 117 of the Public Procurement Law in Poland, which imposes experience requirements for contractors bidding for public procurement.
The author emphasizes that this regulation can hinder small and medium-sized enterprises from gaining experience and expanding their business, as it requires them to have specific experience before they can implement a given investment.
The content of the publication is also available in the electronic version of the daily.
An article titled "Troubles with Interpreting the Exclusion Period of a Contractor" by Jaroslaw Jerzykowski, a member of SPZP, appeared in the Rzeczpospolita daily.
"The occurrence of an exclusion premise in relation to the contractor eliminates him from the public procurement procedure, and his offer is subject to rejection (Art. 226 section 1 point 2 letter a) of the Act of September 11, 2019 - Public Procurement Law (consolidated text Journal of Laws from 2022 item 1710 as amended - p.z.p.)). Circumstances constituting the exclusion premises from the proceedings have a very diverse character, but their common denominator is the imposition of a penalty on the contractor in the form of elimination from the public procurement procedure due to an undesirable legal or factual situation in which he found himself."
The author analyzes interpretive difficulties associated with the exclusion period of a contractor from a public procurement procedure, as described in Polish Public Procurement Law. The exclusion of a contractor, who meets certain conditions, is a crucial part of the public procurement process. The article particularly emphasizes ambiguities related to the interpretation of the exclusion period for different premises, such as conclusion of an agreement disrupting competition (tender collusion) or improper performance of significant obligations arising from previous contracts. Some of these issues have already been interpreted by the National Appeals Chamber and the Court of Justice of the European Union, however, there are still ambiguities, which emphasizes the need for more precise legal regulations.
The content of the publication is also available in the electronic version of the daily.
An article titled "Sole Source Procedure for Defense-Road Procurements" by Żaneta Urbaniak, a member of the Polish Public Procurement Law Association (SPZP), was published in Rzeczpospolita daily.
"On May 23, 2023, a governmental bill was submitted to the Sejm – amending the act on the provision of information about the environment and its protection, public participation in environmental protection, and environmental impact assessments, along with some other laws (the 'bill'). A first glance at the title might suggest that this bill would not be particularly important for those involved in public procurement. However, even a cursory reading of the proposed bill dramatically changes that first impression. Indeed, according to Article 7 of the bill, the Polish legislator has effectively decided to introduce a new justification for sole source procurement. Furthermore, it has also decided to exempt the provisions on the procurement commission (Article 53-55 of the Act of September 11, 2019 - Public Procurement Law - 'PPL') and on publishing obligations (Article 216 PPL)."
The article discusses a bill introducing a new justification for awarding public contracts through a sole source procurement method, related to defense-road investments. It highlights ambiguities in the bill, such as the lack of definition of an "element essential for defense," and the possibility of awarding contracts without publishing information about them. It emphasizes the necessity to observe further work on the bill due to its potential impact on the road infrastructure sector.
The article is also available in the electronic version of the daily.
On June 1, 2023, the General Assembly of the Members of the Public Procurement Law Association took place. The meeting was an opportunity to summarize the Association's activities in the previous year, and also - due to the expiring term of the Association's authorities - to elect the authorities for the next term.
The newly appointed Board of SPZP consists of: Aldona Kowalczyk, Katarzyna Kuźma, Mirella Lechna-Marchewka, Piotr Bogdanowicz, Wojciech Merkwa, and Jan Roliński, while the Audit Committee includes: Anna Prigan, Anna Specht-Schampera, Anna Szymańska, Wojciech Hartung, Jarosław Jerzykowski, Jarosław Sroka, and Tomasz Zalewski.
The meeting concluded with a discussion about planned initiatives of the Association.
After two years of the Public Procurement Law being in effect and several of its amendments, the Public Procurement Law Association has reviewed the functioning of the law's regulations and assessed this regulation in the context of achieving the objectives of procurement directives, practical aspects of its application, and the efficiency of public funds spending.
As a result, the Association has developed a set of de lege ferenda postulates regarding selected legislative solutions, which it perceives as key areas requiring improvement.
During yesterday's conference "Revision of the Public Procurement Law - key legislative postulates of the Association" organized by the Association and the Chair of European Law of the University of Warsaw, a report containing these postulates was presented.
Report for download
Conference participants focused on several key aspects of the Public Procurement Law. Lively discussion was particularly sparked by the postulates related to the exclusionary premise associated with the non-performance or improper performance of a previous public procurement contract in the context of practical difficulties related to its application due to the current wording of the regulations. Ambitious postulates of the Association regarding appeal measures, including the institution of joining, as well as a number of other procedural aspects of the appeal proceedings, were also discussed.
Significant emphasis was placed on the procedure for canceling a public procurement contract and the issue of KIO's cognition in this area, as well as the need to regulate issues related to the contractors' compensation claims for violation of the Public Procurement Law by the contractors.
Today there is a conference "Revision of the Public Procurement Law - key legislative postulates of the Association", organized by the Public Procurement Law Association and the Chair of European Law at the University of Warsaw.
After reviewing the functioning of the law's regulations and evaluating its regulation in the context of achieving the objectives of procurement directives and practical aspects of its application, the Association has developed a set of postulates, which it perceives as key areas requiring improvement. The result of the analysis will be presented during today's conference in the form of a report.
In connection with this event, an interview appeared in the Rzeczpospolita daily with Mirella Lechna-Marchewka, a legal counsel and a member of the Association's board, in which she discussed some of the postulates. She drew attention to the problem of excluding contractors from tenders on the basis of imposed contractual penalties, emphasizing that a penalty does not always mean the contractor's unreliability. She questioned the practice of imposing contract content by the ordering party and the difficulties in claiming compensation. She pointed out that the Public Procurement Law Association proposes amendments for better implementation of EU law and clarity of national regulations.
The conversation is also available in the electronic version of the daily.
We are pleased to present the detailed agenda and all relevant details related to this event.
The Public Procurement Law Association and the Chair of European Law at the University of Warsaw are pleased to invite you to the conference: Revision of the Public Procurement Law – key legislative postulates of the Association
The Public Procurement Law has been in force for over 2 years. During this time, it was amended several times, including during its long vacatio legis. The National Appeals Chamber issued over 2000 rulings based on its provisions, and over 40 rulings were made in the Public Procurement Court.
It's high time to draw conclusions about the quality and effectiveness of the solutions adopted in the law.
The Association reviewed the functioning of the law's regulations and evaluated this regulation in the context of achieving the objectives of procurement directives and practical aspects of its application. As a result, the Association has developed a set of postulates de lege ferenda concerning selected legislative solutions, which it perceives as key areas requiring improvement.
The event will take place on May 30, 2023 in Warsaw, Collegium Juridicum II, Lipowa 4 street, A3 auditorium
Conference program:
11:50-12:00 Guest registration
12:00 – 12:05 Conference Opening – Aldona Kowalczyk, President of the Association's Board
12:10 – 13:30 Presentation of the Association's legislative postulates in selected areas of Public Procurement Law regulation:
exclusion criteria, conditions for participation in the procedure and electronic auction speakers: Katarzyna Kuźma, Wojciech Merkwa, Dr. Wojciech Hartung
public procurement contracts – speaker: Jarosław Sroka
legal remedies – speakers: Anna Prigan/Jarosław Jerzykowski
compensation in the Public Procurement Law – speaker: Dr. Aleksandra Sołtysińska
Questions and answers
Moderators: Irena Skubiszak-Kalinowska and Dr. Jarosław Kola
13:30 – 14:00 Discussion panel: Certification of public procurement contractors
Moderator: Prof. Dr. Piotr Bogdanowicz (Chair of European Law, University of Warsaw)
Panelist: Przemysław Grosfeld - Deputy Director at the Ministry of Development and Technology
Panelist: Jan Styliński – President of the Management Board of the Construction Employers' Association
We would like to remind you that participation in the conference is free of charge and possible after the organizer has confirmed the acceptance of the application.
The number of places is limited, applications are accepted in the order they are received. The possibility to register participation is available on this website.
An article titled "Indexation clause - panacea for inflation or placebo" by Martyna Wójcik, a member of the Public Procurement Law Association, was published in the Rzeczpospolita daily.
"The normative regulation of art. 439 par. 1 of the public procurement law in its original wording obliged contracting authorities to define in public procurement contracts, whose subject matter are construction works or services, concluded for a period longer than 12 months, the rules for changing the amount of remuneration due to the contractor in the event of a change in the price of materials or costs related to the implementation of the contract."
The article deals with changes in the Public Procurement Law in Poland, which introduce the obligation to include an indexation clause in public procurement contracts concluded for a period longer than 6 months. This change was introduced in response to the constant, extraordinary increase in the prices of goods and services observed since the second quarter of 2022, caused by the COVID-19 pandemic and the war in Ukraine.
However, differences in the interpretation and application of the new regulation are visible in the rulings of the National Appeal Chamber, resulting from the lack of a clear specification of the purpose of the indexation clause. Some rulings emphasize the need to adjust remuneration to changed market conditions, others focus on a strictly linguistic interpretation of the Public Procurement Law provisions.
The content of the publication is also available in the electronic version of the daily.
An article titled "How to confirm the non-punishment of foreigners in managerial or supervisory roles" by Anna Prigan, a member of the Public Procurement Law Association, was published in the Rzeczpospolita daily.
"A capital company registered in the Polish National Court Register should confirm the non-punishment of its board members, supervisory board and proxies by submitting a certificate from the Polish Criminal Record, even if all these people are citizens of another country."
In the case of capital companies registered in the Polish National Court Register, it is mandatory to confirm the non-punishment of board members, supervisory board and proxies. The company should submit a certificate from the Polish National Criminal Register, regardless of the citizenship of these individuals.
Current regulations do not require an ECRIS attachment for companies registered in Poland, but they do require it from citizens of other EU Member States. The regulations concerning the confirmation of non-punishment of foreigners in managerial or supervisory roles should be flexible and allow the possibility of presenting information on non-punishment issued in the country of citizenship or residence of the individual.
The content of the publication is also available in the electronic version of the daily.
An article titled "The content of the offer is inconsistent with the terms of the order", authored by Marcin Boczek, a member of #SPZP, was published in the Rzeczpospolita daily.
"In the above-mentioned provision, the legislator unequivocally indicated how to submit the deposit in the form of a guarantee or surety to the Ordering Party. Therefore, there is no doubt that under PZP, for the deposit made in the form of an insurance guarantee to be considered correctly submitted, the document must be submitted to the Ordering Party in the original, in electronic form."
The author refers to examples from the rulings of the National Appeal Chamber. He emphasizes that it is important to submit the original of the pledge document in the form in which it was issued by the guarantor, and not, for example, a scanned document with the contractor's electronic signature.
This approach is aimed at ensuring the certainty of economic turnover and enabling the contracting authority to effectively validate guarantee documents.
The content of the publication is also available in the electronic version of the daily.
An article titled "A lot depends on how the contractor provides explanations", authored by Michał Wojciechowski, a member of SPZP, was published in the Rzeczpospolita daily.
"The contractor has the obligation to ensure that each parameter indicated by him in the explanations regarding the calculation of the price is consistent with the technical documentation constituting the description of the subject of the order in the proceedings."
From the article, readers will learn how model explanations influence the contractor's offer, how to avoid rejecting an offer due to an outrageously low price, the consequences of irregularities in the offer, and the need to comply with technical requirements.
The content of the publication is also available in the electronic version of the daily.
An article titled "Offer content inconsistent with order conditions", co-authored by Dr. Jakub Krysa, a member of SPZP, was published in the Rzeczpospolita daily.
"One of the most common reasons for rejecting offers submitted by contractors in public procurement proceedings is their inconsistency with the requirements set by the ordering party.
The article discusses problems related to rejecting bids in public procurement proceedings due to non-compliance with the ordering party's requirements.
The authors discuss cases where bids are rejected due to non-compliance with order conditions, both in terms of substance and form. They also present the rulings of the National Appeal Chamber that influence the interpretation of "inconsistency" of the offer content with the order conditions.
The content of the publication is also available in the electronic version of the daily.
In today's legal supplement of the Rzeczpospolita daily, an article titled "Invalidation of proceedings due to their defect", authored by Marzena Jaworska, a member of SPZP, was published.
The content of the publication is also available in the electronic version of the daily.
In the latest legal supplement of the Rzeczpospolita daily, an article titled "The principle of proximity in the export of infectious medical waste", authored by Martyna Wójcik, a member of SPZP, was published.
The content of the publication is also available in the electronic version of the daily.
In today's supplement to the Rzeczpospolita daily regarding case law, an article titled "When lifting the prohibition of contract conclusion is possible" was published. The author is Agnieszka Matusiak, a member of SPZP.
The content of the publication is also available in the electronic version of the daily.
In today's supplement to the Rzeczpospolita daily regarding case law, an article titled "In tenders, you have to count on the worst-case scenario" was published. The co-author is Anna Specht-Schampera, a member of the SPZP board.
The content of the publication is also available in the electronic version of the daily.
On December 6, 2022, at the headquarters of the District Bar Council in Warsaw, the final oral stage of the III edition of the tournament for students of law and administration faculties - Moot Court: "Legal representation in proceedings before the National Chamber of Appeal" took place.
The tournament was organized by the Association of Public Procurement Law. The President of the Public Procurement Office - Hubert Nowak, who took part in the award ceremony, took the honorary patronage over the III edition.
The Association of Public Procurement Law and the Section of Public Procurement Law of the District Bar Council in Warsaw were the founders of the cash prizes for taking first place.
The Public Procurement Office offered a prize in the form of unpaid internships for members of both teams - the finalists of the tournament. In addition, 2-3 month paid internships for members of the teams - finalists of the tournament, were offered by the following law firms:
This year's tournament was divided into two parts. Teams from five universities took part in the competition:
Team 1 - Adam Mickiewicz University (supervisor: Dr. Jarosław Kola)
Jakub Derda
Aleksandra Grabowska,
Maksymilian Nagalski,
Szymon Siuda,
Karol Wundziński.
Team 2 - University of Warsaw (supervisor: Prof. UW Dr. Piotr Bogdanowicz)
Jakub Szymanowski,
Filip Marczyk,
Marcin Gorzkowski,
Patryk Stankiewicz,
Wiktor Ołdak.
Team 3 - University of Białystok (supervisor: Dr. Renata Tanajewska)
Natalia Kozłowska,
Krystian Kruszyński.
Team 4 - University of Łódź (supervisor: Dr. Anna Górczyńska)
Karolina Krupińska,
Wincent Chrapowicki,
Peter Kozicki,
Michał Płuska,
Szymon Zasina.
Team 5 - University of Szczecin (supervisor: Martyna Wójcik)
Katarzyna Rytwińska,
Alicja Ziemlińska,
Jakub Waszkiewicz.
In the first stage of the competition, the quality of legal argumentation and its presentation, as well as the formal correctness of the letters, were taken into account when assessing the procedural letters. The final part involved the teams participating as representatives of the parties in a simulated hearing before the National Appeals Chamber (KIO).
The competition was judged by the Jury consisting of:
Jan Kuzawiński - Vice President of the National Appeals Chamber,
Ewa Kisiel - representative of the Section of Public Procurement Law of the District Bar Council in Warsaw,
Sylwester Kuchnio - member of the Association of Public Procurement Law,
Wojciech Merkwa - member of the Association of Public Procurement Law.
The final of the competition resembled real struggles before the KIO. Evaluating the oral performances, the jurors took into account not only their substantive level, but also coolness and the ability to react to questions from the members of the jury and the accuracy of the replies.
The results of the III edition of the Moot Court tournament: "Representation in proceedings before the National Appeals Chamber" are as follows:
1st place - University of Warsaw
2nd place - University of Szczecin
"We are glad that the third edition of the competition, which is part of the educational mission of our Association, has again met with such great interest. We hope that our Moot Court will contribute to the increase in popularity of public procurement law among students and encourage them to link their career path with this area of law" - added Aldona Kowalczyk, President of the Board of the Association.
Congratulations to the Winners and all Participants!
In today's supplement to the Rzeczpospolita newspaper, focusing on jurisprudence, an article titled "Contractual Penalty as a Ground for Exclusion" was published. The author of the article is Mirella Lechna-Marchewka, a board member of SPZP.
The content of the publication is also available in the electronic version of the newspaper.
The Organiser has amended the tournament timetable, adopting the following chronology of the upcoming competition stages (changes from the existing Timetable are marked in red):
Timetable:
Today's supplement to Rzeczpospolita on case-law features an article entitled 'How to become an ordering party that never loses', authored by Tomasz Zalewski, a member of the SPZP audit committee.
The article is also available in the electronic version of Rzeczpospolita.
We would like to inform you that, after analysing and assessing all of the appeals, the competition jury has decided that the team from the University of Szczecin will progress to the next stage. This team’s appeal, as that which was most highly evaluated, will be forwarded to the teams which were assigned the role of the ordering party to prepare a response.
The appeal prepared by the students from the University of Szczecin was selected and assessed as being the best in terms of the comprehensiveness and accuracy of the allegations put forward, as well as the adequacy and proportionality of the grounds drawn up. Also noteworthy were the remarkable professionalism and "legal sense" at this stage of professional development.
The jury also highly assessed the draft appeals sent by the law faculty teams from the Adam Mickiewicz University and the University of Białystok. The jury particularly appreciates the originality and creativity shown by the students in putting forward their appeals and justification.
We congratulate all the teams on a job well done and express the hope that it was a developing adventure and will bear fruit during their future careers.
1. The excerpt from the ToR which has been made available does not contain a passage on the optional grounds for exclusion. Should it be assumed that the Contracting Authority in the documentation of the proceedings provided for the exclusion of the contractor under Article 109(1)(10) of the PPL Act?
Answer: YES, it should be assumed that the Contracting Authority in the documentation of the proceedings provided for the exclusion of the contractor under Article 109 (1) (10) of the PPL Act.
2. May the Employer's/Contractor's representatives act as professional proxies, i.e. be named and sign as e.g. Legal Adviser/Attorney Jan Kowalski?
Answer: Yes. They can.
Almost two years after the law came into force, enough time has passed to examine if the "new" Public Procurement Law has lived up to expectations.
At the conference "2 years of new PPL – an analysis of the experience gained and proposed changes" - together with members of the Association and representatives of authorities and institutions involved in the public procurement system, contracting authorities, and contractors - we exchanged views on problematic issues related to the current solutions in the PPL Act and the direction of necessary changes.
We would like to thank all the experts who accepted the invitation to participate in the panels at the Association's conference for their substantive and constructive discussions. As the Association, we see a need to start a public debate now and develop solutions that will serve all participants in the public procurement market.
In accordance with the regulations of the 3rd edition of the Moot Court tournament: “Legal representation before the National Appeals Chamber” announced by the Public Procurement Law Association, we present the student teams that have entered, the tournament case studies, and the composition of the jury:
Team 1 - Adam Mickiewicz University (supervisor: Dr Jarosław Kola)
Jakub Derda
Aleksandra Grabowska,
Maksymilian Nagalski,
Szymon Siuda,
Karol Wundziński.
Team 2 - University of Warsaw (supervisor: Prof. UW Dr. Piotr Bogdanowicz)
Jakub Szymanowski,
Filip Marczyk,
Marcin Gorzkowski,
Patryk Stankiewicz,
Wiktor Ołdak.
Team 3 - University of Białystok (supervisor: Dr Renata Tanajewska)
Natalia Kozłowska,
Krystian Kruszyński.
Team 4 - University of Łódź (supervisor: Dr Anna Górczyńska)
Karolina Krupińska,
Vincent Chrapowicki,
Peter Kozicki,
Michał Płuska,
Szymon Zasina.
Team 5 - University of Szczecin (supervisor: Martyna Wójcik)
Katarzyna Rytwińska,
Alicja Ziemlińska,
Jakub Waszkiewicz.
Files with case descriptions can be downloaded by clicking the link.
Assignment of litigation roles for each team below:
Appellant - Teams no. 1, 3 and 5
Contracting Authority - Teams 2 and 4
The composition of the Jury is as follows:
Today's supplement to Rzeczpospolita concerning case-law features an article entitled "Sometimes it is necessary to make an autocorrection of the selection of the most advantageous offer", authored by Żaneta Urbaniak, member of the SPZP.
The text of the publication is available here.
