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Public procurement during the COVID-19 pandemic

14 April 2020
The current COVID-19 situation affects all spheres of life, forcing its participants to adapt their actions to the prevailing realities. This is no different for the public procurement market in Poland.

On 1 April 2020, the provisions of the act amending the act on special solutions related to preventing and combating COVID-19, other infectious diseases and crisis situations caused by them and some other acts - the "Anti-Crisis Shield" - entered into force.

Possibility to exclude the application of the Public Procurement Law for certain orders

Exclusion of the Bank Gospodarstwa Krajowego and the Polish Development Fund from the obligation to apply the Public Procurement Law when implementing support instruments aimed at mitigating the economic effects of COVID-19.

The public procurement regulations do not apply to contracts for services or supplies awarded by the Social Insurance Institution (ZUS) in connection with the performance of tasks related to determining the law or payment of a standstill benefit.

The provisions of the Public Procurement Law shall not apply to service, supply or construction contracts awarded in connection with the prevention or combating of an epidemic in an area where an epidemic hazard or state of epidemics has been declared.

Performance of contracts concluded under the Public Procurement Law

General obligation of the parties to share information on the impact of the circumstances surrounding the occurrence COVID-19 for the proper performance of the contract.

Possibility of amending the contract:

  • Information to the party on the impact of the circumstances on the occurrence of COVID-19 on the proper performance of the contract in question, if such impact has occurred or may occur.
  • Obligation to confirm the impact of the circumstances in question by means of appropriate statements or documents (an open catalogue of documents which confirm the impact of the circumstances in question on the performance of a specific order is foreseen). Possibility to request additional statements or documents confirming the influence of circumstances related to the occurrence of COVID-19 on the proper performance of a given order.
  • To provide the other party within 14 days with a statement of its position, together with a justification, concerning the presented circumstances for the proper performance of the contract.
  • Once it has been established that the circumstances surrounding the occurrence of COVID-19 may affect or affect the proper performance of the contract, the possibility of amending the contract may be introduced.
  • The catalogue of changes to the contract is open, and in particular the changes may concern: (i) the date of performance of the agreement or a part thereof, or temporary suspension of performance of the agreement or a part thereof, (ii) a change in the manner of performance of supplies, services or construction works, (iii) a change in the scope of performance of the contractor and a corresponding change in the contractor's remuneration.
  • The increase in remuneration caused by each subsequent change may not exceed 50% of the original contract value (!).
  • If the contract provides for more favourable conditions for the change of provisions, more favourable provisions shall apply.
  • Circumstances related to the occurrence of COVID-19 cannot constitute an independent basis for exercising the contractual right of rescission.

The possibility of not pursuing the receivables, including contractual penalties and exemption from penalties resulting from the Act on Violation of Public Finance Discipline or withdrawal from pursuing the receivables:

  • The Ordering Party recognizing that there are grounds to determine the lack of responsibility of the contractor should refrain from establishing and pursuing the stipulated contractual penalties or damages.
  • Otherwise, the possibility of reducing the amount of contractual penalties or damages should be considered, depending on the degree of influence of the circumstances related to COVID-19 on the proper performance of the contract, as well as taking into account the content of the changes made to the contract.
  • In the event of failure to determine or to collect receivables from a party to the contract arising from the non-performance or improper performance of the public procurement contract as a result of circumstances related to the occurrence of COVID-19, as well as the amendment of the public procurement contract, this does not constitute a violation of public finance discipline.

The solutions also apply to contracts with subcontractors and further subcontractors

Procurement procedures in progress

During the COVID-19 epidemic, contracting authorities may conduct tendering procedures, including in particular the opening of bids, ensuring that this is done transparently via online transmission.

There are no regulations at the moment prohibiting the contracting authorities from retaining the deposit if the contractor is unable to conclude the contract due to the COVID-19.

The interruption and suspension of the course of procedural and judicial deadlines due to COVID-19 do not apply to the control of prior orders co-financed by the European Union, conducted by the President of the Public Procurement Office and appeal proceedings before the National Appeal Chamber.

The time limits for appeal proceedings (in particular for filing an appeal and joining the appeal proceedings) are not suspended or deferred. In practice, this means that lodging appeals with the National Appeal Chamber remains unchanged.

To read this update in Polish, download our PDF >

For more information please do not hesitate to contact one of our experts below.

 

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