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Tales from the National Appeal Chamber: Key part of the contract—a contractor may challenge the obligation to perform works personally
Requiring personal performance of key tasks is one of the guarantees of proper contract performance. However, contracting authorities must remember that this institution cannot be abused and treated mechanically, without taking into account the specifics of the given procurement. Therefore, contractors may challenge the terms of reference if they believe that the requirements are too stringent and limit their ability to participate in performance of the contract. Such challenges can be effective, as demonstrated by the ruling by the National Appeal Chamber of 13 October 2021 (KIO 2733/21).
Tales from the National Appeal Chamber: Key part of the contract—a contractor may challenge the obligation to perform works personally
Tales from the National Appeal Chamber: Grave professional misconduct must be caused by the contractor
When filling in the European Single Procurement Document (ESPD) form, contractors must answer the question whether they have committed grave professional misconduct while performing previous contracts. This question is closely correlated with the condition for exclusion under Art. 109(1)(5) of the Public Procurement Law, which specifies that this concerns violations that are serious and self-caused. Therefore, a contractor does not necessarily have to mention any and all delays or complications that occurred during the performance of previous contracts. In this context, an interesting ruling was issued by the National Appeal Chamber on 4 June 2021 (KIO 1087/21) indicating how this question from the ESPD form should be interpreted.
Tales from the National Appeal Chamber: Grave professional misconduct must be caused by the contractor
Tales from the National Appeal Chamber: Can a discrepancy in a bid price between figures and words be treated as a typographical error?
Sometimes typos occur when preparing bid documents, and can be corrected by the contracting authority if the contractor provides the required clarification. But not all mistakes can be cured, especially those concerning the bid price, as they directly affect the contractor’s position in the ranking. An example of such a mistake is when a price is given in figures and then restated differently in words. The National Appeal Chamber explained in its ruling of 1 June 2021 (case no. KIO 1040/21) why such a mistake cannot be corrected.
Tales from the National Appeal Chamber: Can a discrepancy in a bid price between figures and words be treated as a typographical error?
Tales from the National Appeal Chamber: When can a performance bond exceed 5% of the total bid price or the value of the contracting authority’s liability?
When preparing contract documents, the contracting authority must decide the amount of the performance bond it will demand. As a rule, this security should amount to 5% of the total bid price or the value of the contracting authority’s liability. But when can this threshold be exceeded, and to what maximum value? This and other questions were answered in the ruling of the National Appeal Chamber of 21 October 2020 (KIO 1381/20).
Tales from the National Appeal Chamber: When can a performance bond exceed 5% of the total bid price or the value of the contracting authority’s liability?
Tales from the National Appeal Chamber: Change in the composition of a consortium during competitive dialogue
A two-stage competitive dialogue often extends the procurement procedure to many months. During that time, as a result of various circumstances, changes in the parties to a consortium may occur, often beyond the contractors’ control. In this situation, will the remaining contractors still be entitled to submit a bid, or should they be excluded from the procedure? In its ruling of 22 January 2021 (case no. KIO 3357/20), the National Appeal Chamber held that to avoid negative consequences for contractors, two key conditions must be met.
Tales from the National Appeal Chamber: Change in the composition of a consortium during competitive dialogue
Tales from the National Appeal Chamber: The specialised nature of medical procurements justifies tougher conditions for participating in tenders
When establishing the conditions for participating in a contract award procedure, contracting authorities often face the dilemma of how to reflect the specific subject matter of the procurement without infringing the principle of proportionality. This task is even harder when the procurement involves specialised medical equipment, where improper servicing could put patients’ life or health at risk. Do such circumstances justify limiting the number of bidders seeking a contract? Yes, the National Appeal Chamber held in its ruling of 29 January 2021 (case no. KIO 3489/20).
Tales from the National Appeal Chamber: The specialised nature of medical procurements justifies tougher conditions for participating in tenders
Tales from the National Appeal Chamber: Protection of trade secrets in public procurement
Trade secrets are a sensitive aspect of public procurement proceedings. They limit the principle of openness of proceedings, but protect sensitive information about the contractor’s business. When granting or denying a request to keep certain information secret, the contracting authority should carefully assess the contractor’s arguments, to prevent abuse of this institution. Despite entry into force of the new Public Procurement Law, this issue is still alive, as evidenced by the recently published ruling of the National Appeal Chamber of 29 March 2021 (case no. KIO 720/21).
Tales from the National Appeal Chamber: Protection of trade secrets in public procurement
Prohibited provisions in subcontracts in public procurement
Contractors often take advantage of their stronger negotiating position by imposing terms in subcontracts. The new Public Procurement Law includes Art. 463 to protect subcontractors from unfairly framed contractual obligations. Will subcontractors benefit from the new regulation?
Prohibited provisions in subcontracts in public procurement
Tales from the National Appeal Chamber: Differences between material and immaterial defects during handover of construction works
Flawless performance of a public contract is very rare. Therefore, the case law has adopted the principle that contracting authorities may refuse the final handover only if there are material defects. But what is the nature of material defects, and how can the procedure for handover of works be properly defined in a public contract? These issues were recently considered by the National Appeal Chamber (KIO) in its ruling of 1 December 2020 (KIO 2965/20), which additionally took a stand on the issue of allegedly grossly excessive contractual penalties and limits on such penalties.
Tales from the National Appeal Chamber: Differences between material and immaterial defects during handover of construction works
Tales from the National Appeal Chamber: Non-statutory grounds for in-house procurement?
Municipal waste collection and transport is the subject of many in-house procurements in Poland. Art. 67(1)(12) of the Public Procurement Law provides one of the possible grounds for awarding such contracts, requiring the contracting authority to meet three conditions. But are there really only three? This issue arose in a case in which the National Appeal Chamber had to decide whether the contracting authority must also meet other, non-statutory conditions to properly award a sole-source contract.
Tales from the National Appeal Chamber: Non-statutory grounds for in-house procurement?
Tales from the National Appeal Chamber: A contractor may freely allocate the value of individual parts of a lump-sum fee
When valuing bids in a public procurement procedure as a lump sum, contractors may freely determine the value of individual parts of the contract. For the contracting authority, only the total value of the contract is relevant, and not the valuations of individual parts. But in every case the contractor should examine the documentation to determine whether the contracting authority has included any limitations in this respect. This is the guidance that can be drawn from the ruling by the National Appeal Chamber of 20 October 2020 (KIO 2101/20).
Tales from the National Appeal Chamber: A contractor may freely allocate the value of individual parts of a lump-sum fee
Tales from the National Appeal Chamber: The contracting authority must create equal conditions for all contractors
Fair competition and equal treatment of contractors are the main principles of awarding public contracts, and all actions taken by the contracting authority in preparing and conducting the procedure must comply with these principles. Nonetheless, procurement procedures often raise questions about how these principles should be applied in practice. Some doubts were recently dispelled by the National Appeal Chamber in its ruling of 15 October 2020 (case no. KIO 2104/20).
Tales from the National Appeal Chamber: The contracting authority must create equal conditions for all contractors