Uncategorized · 1 November 2019

PUBLIC PROCUREMENT ACT AND NATIONAL APPEAL CHAMBER

Public procurement is an element of public finance whose operation has been structured in such a way as to ensure fair competition. They are to prevent nepotism and at the same time guarantee a sufficiently high quality of services. In this way, the rational use of public funds is ensured. Under Polish law, the rules for awarding public contracts are specified in the Act of 29 January 2004 – Public Procurement Law (Journal of Laws of 2018, item 1986).

The basic principles of awarding public contracts are: the principle of equal treatment of contractors, the principle of impartiality and objectivity, the principle of fair competition, the principle of transparency and the principle of written procedure.

It often happens that bidders are dissatisfied with the result. Then the Polish Chamber of Commerce comes to the rescue. It is an institution established by the Act of 13 April 2007 amending the Public Procurement Law, in order to hear appeals lodged in the course of public procurement procedures (before 2007 appeals were examined by teams of arbitrators). Not only entities that have fallen out of the tender may submit applications to the Chamber, but also other entities interested in a given area, if, for example, they may incur costs as a result of the tender or are aware of irregularities.

This right also applies to organizations of contractors entered on the list kept by the President of the PPO. Entries on the basis of the provisions of: chambers of commerce, crafts, professional self-government of some entrepreneurs, organizations of employers, professional self-governments of architects, construction engineers and urban planners may apply for entry on the list. Entry on the list, refusal to enter or striking off the list shall be made by the President of the Office by means of an administrative decision. Currently, there are 148 entities on the list. These are the Chambers of Industry, Craft Guilds, organizations of engineers, employers or architects, and the Polish Chamber of Protection of Persons and Property.
The National Appeal Chamber acts similarly to an arbitral tribunal, and its decision may be appealed to the regional court. The Chamber currently consists of 48 members appointed and dismissed by the Minister of Economy. Members of the Chamber enjoy the protection of public officials in the performance of their duties specified in the Act.

Noteworthy are the very short deadlines for lodging an appeal. Depending on the type of case, they range from 10 to 15 days. In the case of tenders for low amounts, this period is only 5 days. This is very little to gather relevant materials and possibly consult a lawyer. On the other hand, longer deadlines would block tenders, which would cause paralysis in many areas of public finance. In proceedings above EU thresholds, an appeal is generally lodged within 10 days. Sometimes the start date of this period will not be identical to the date of receipt of specific information from the contracting authority. In the absence of information on the contracting authority, this deadline must be counted from the day on which, with due diligence, it was possible to become aware of the circumstances constituting the basis for lodging an appeal. The time for appeal is, however, up to 6 months from the date of the contract, if the formalities for publishing the announcement of the results of the tender in the Official Journal of the European Union have not been completed.

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