Public procurement in Poland – legal advice
Public procurement is a complex process. It requires in-depth legal knowledge and experience innavigating the maze of laws, regulations and procedures. Our law firm offers legal support in the field of public procurement for contracting entities and contractors.
Public procurement law – what entities do we support?
We advise clients at every stage – from document analysis and preparation of offers to representation in appeal proceedings. We help avoid mistakes, minimize risks and maximize chances of success, ensuring legal certainty and security in the public procurement process.
Our lawyers will help you prepare and verify tender documentation and choose the most advantageous offer. We also provide representation in negotiations and appeal proceedings before the National Chamber of Appeal.
Public proceedings – How can we help?
Our offer is addressed to both ordering parties and contractors.
Public procurement – support for contractors
Assistance in preparing tender offers
- Advice on the preparation of tender offers, including assistance in the analysis of tender documentation and adapting offers to the requirements of the ordering party
- Developing questions specifying the terms of the order and and communicating with the ordering party
Analysis of the terms of the order
Evaluation of tender specifications in terms of legal and financial risks and identification of potential threats
Negotiating contract terms
Assistance in negotiating more favourable terms of the public procurement contract, including clauses protecting the contractor’s interests
Representation in appeal proceedings
Representing the contractor before the National Chamber of Appeal or common courts in matters related to appeals or complaints against the contracting authority’s decisions
Legal advice on meeting the conditions for participation in the proceedings
Advice on meeting formal and legal tender requirements, including assistance in preparing required documents and certificates
Training and support in the field of public procurement law
Organizing training for contractors’ employees to help them effectively navigate public procurement procedures
Public procurement – Support for contracting authorities
Preparation of tender documentation
Assistance in developing the specification of essential terms of the contract (SIWZ) and other documents necessary to conduct the tender procedure
Consulting on tender procedures
Advice on selecting the appropriate tender procedure, including assistance in determining the conditions for contractor qualification and criteria for evaluating offers
Monitoring compliance with applicable laws
Providing legal support in the area of compliance with the Public Procurement Law and other regulations, including EU public procurement regulations
Preparation and negotiation of contracts
Assistance in preparing and negotiating the terms of a public procurement contract, protecting the interests of the ordering party
Representation in appeal proceedings
Representing the ordering party before the National Chamber of Appeal in the case of appeals by contractors and in proceedings before common courts
Audit of tender procedures
Conducting internal audits in the scope of conducted tender procedures in order to ensure compliance with legal regulations
What are public proceedings in Poland – the most important information
Legal regulations and thresholds in public procurement
The main legal act regulating the public procurement system in Poland , i.e. the rules and procedures for awarding contracts, is, as of 1 January 2021, the Act of 11 September 2019 – Public Procurement Law.
As a rule, the provisions of the Act apply to orders and competitions whose net value (excluding VAT) reaches or exceeds PLN 130,000. However, in the case of sectoral orders and orders in the field of defence and security, as well as some orders placed by private entities, EU thresholds apply, the values of which are given in the announcements of the President of the Public Procurement Office. The current values of the EU thresholds can be found here.
Public procurement modes
The choice of the public procurement procedure depends on, among other things, the value, type, specification of the subject and urgency of the order. According to the Act, the following procedures are provided:
Open tendering:
- This is an open procedure in which any interested contractor can submit a bid in response to a contract notice. According to the Act, this is the basic procedure for awarding public contracts.
Restricted tendering:
- All interested contractors may submit applications to participate in the procedure.
- Then, only selected contractors are invited to submit bids.
- The application of this procedure is not dependent on the occurrence of the conditions specified in the Act.
Negotiated procedure with publication:
- As in a restricted tender, contractors submit applications to participate in the procedure.
- The ordering party invites eligible contractors to submit preliminary offers.
- Negotiations are underway to improve the offers.
- Finally, contractors submit their final bids.
- This procedure may be applied only in the event of the occurrence of the conditions specified in the Act, including the need to adapt existing solutions on the market to the needs of the ordering party.
Competitive dialogue:
- The first stage is for interested contractors to submit an application to participate in the procedure.
- After inviting contractors to dialogue, talks are held regarding the proposed solutions.
- After completing the dialogue, contractors submit their offers.
- This procedure may only be applied if circumstances arise that justify conducting the procedure in a negotiated procedure with publication.
- In this mode, there is no need to submit preliminary offers, so it can be faster than the negotiated mode with publication.
Innovation partnership:
- As in the case of negotiations with publication and competitive dialogue, contractors submit applications to participate in the procedure.
- Admitted contractors submit preliminary offers and then participate in negotiations.
- Once negotiations are completed, contractors submit their final offers.
- This mode can only be used when the subject of the contract is an innovative product, service or construction works that are not available on the market
- As a result of the execution of the order, the ordering party first obtains the product concept and design (i.e. the results of research and development work carried out by the contractor), and in the second stage the contractor delivers the product, provided that it meets the agreed criteria ( the performance levels and maximum costs are within the agreed range) .
Negotiated procedure without publication:
- The ordering party negotiates the terms of the contract with the selected contractors and invites them to submit offers.
- The application of this procurement procedure is dependent on the occurrence of circumstances specified in the Act, including the lack of resolution of a previous procurement concerning the same subject matter conducted under an open or restricted tender procedure.
Single-source procurement:
- The order is awarded after negotiations with only one selected contractor.
- This mode is only possible in situations described in the Act, including when only one contractor supplies a given product.
Public procurement in Poland – obligations of the ordering party and the contractor
In the public procurement process, two parties play key roles: the ordering party and the contractor.
Each party has certain duties and responsibilities:
Obligations of the ordering party:
- Announcement and conduct of the procedure in accordance with the provisions of the Public Procurement Law.
- Ensuring transparency and fair competition in the tender process.
- Precise definition of the contract terms, tender evaluation criteria and formal requirements.
- Ensuring equal treatment of contractors and non-discriminatory access to information.
- Protection of contractors’ trade secrets in the scope of confidential information.
Contractor’s responsibilities:
- Preparation and submission of an offer in accordance with the contracting authority’s requirements.
- Fulfilling the conditions for participation in the procedure and documenting the required qualifications.
- Compliance with legal regulations and principles of fair competition.
Thanks to the precise division of responsibilities, both parties can efficiently conduct the public procurement process, ensuring its transparency and compliance with regulations
An important aspect is the protection of the contractor ‘s business secret. According to the regulations, a contractor who, as part of the offer, presents information constituting business secret, is obliged to clearly notify the ordering party of this. At the same time, the contractor must justify in detail why, in his/her opinion, the information submitted qualifies as business secret, indicating specific premises and evidence of its confidential nature and economic value.
This action is intended to ensure transparency of the proceedings while respecting the contractor’s rights to protect its know-how and other confidential information.
Our expert:
Grzegorz Witczak
Director of the Commercial Law and Property Department
TGC Corporate Lawyers