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A contractual penalty in public procurement is not damages
The Public Procurement Law of 11 September 2019 improperly implements the exclusion ground for improper performance of a former contract, as it ignores the specifics of the Polish public procurement market. This error can be corrected by a legislative change or by a pro-EU interpretation of the existing law.
The public procurement market doesn’t need a special act for Covid or the Ukraine crisis
Special acts introduced in isolation from existing solutions distort good law. This can be seen in how the public procurement market in Poland has been affected by successive amendments to the Covid Special Act. Today a special act is unnecessary, and
provisions will suffice. Instead, it would be useful to amend the provision governing claims for a change in the amount or method of payment for public contracts.
News from Poland—Business & Law, Episode 16: War as force majeure
News from Poland, infrastructure, public procurement
This time Mirella Lechna-Marchewka heading the firm’s Infrastructure and Public Procurement practices, discusses war as force majeure in the context of Russian aggression on Ukraine.
War as force majeure
For the past two years, public procurement contractors have been forced to invoke force majeure to protect themselves from liability for delays in performance of contracts. We thought everything had been written about force majeure, but the war in Ukraine requires the invocation of force majeure in a different context.
Changes in Polish public procurement law
News from Poland, public procurement
Public procurement is the process by which public authorities – government departments or local authorities – purchase work, goods or services from companies in the market. Recent changes to the public procurement law brought many improvements.
News from Poland—Business & Law, Episode 3: Changes in the Public Procurement Law
News from Poland
The programme is a synthesis of important current events in the Polish economy and changes to Polish law, especially those that may concern management board members and affect the risk of serving on boards.
Despite the pandemic, the National Appeal Chamber can (and must) function
coronavirus, public procurement
In Poland, the National Appeal Chamber upholds the effectiveness of the rules guaranteeing transparent and non-discriminatory access to public procurement contracts within the EU. Member states are required to ensure contractors the consideration of review procedures concerning the award of public contracts, as is clear from the Remedies Directive.
Coronavirus: A new reality in public procurement
coronavirus, public procurement
The coronavirus pandemic is already affecting contractors carrying out public projects and other contracts under the public procurement regime. With the dynamic development of the situation, there is a risk that negative consequences will go even further. The current situation affects not only the performance of contracts but also ongoing and future public procurement procedures.
In-house procurement may not be compatible with EU law
European Court of Justice, public procurement
The award of an in-house procurement satisfying the conditions laid down in Art. 12(1)(a)–(c) of Directive 2014/24/EU is not necessarily consistent with European Union law, the Court of Justice of the European Union held in the judgment of 3 October 2019 in Case C-285/18, Kauno miesto savivaldybè. This ruling is not controversial, nor does it change the principles developed over the years for excluding internal procurement from the regime of the procurement directives. Nonetheless, it gives contractors an additional argument for challenging contracting authorities’ decisions ignoring such basic principles as transparency.
EU–China Strategic Outlook
Two of the world’s greatest powerhouses, the European Union and China, are linked by an enduring relationship with close trade and economic ties. Both are committed to a comprehensive strategic partnership, and both share commitments and interests in global sustainable development.
New Public Procurement Law: Mediation and conciliation at the Court of Arbitration at the General Counsel to the Republic of Poland—good or bad solution?
arbitration, project, public procurement
Under the proposed new Public Procurement Law, in the event of a dispute involving performance of a public contract, amicable resolution of the dispute would be handled by the Court of Arbitration at the General Counsel to the Republic of Poland. But the proposal generates legal doubts.
Substitute performance and party substitution in a public procurement contract
A party substitution in a contract concluded under the Public Procurement Law is possible if the contracting authority explicitly provided for the possibility of such a change in the contract announcement and specified the conditions for such a change. Whether a contractual provision authorising the contracting authority to entrust the performance of the contract to a third party (substitute performance) can be regarded as a review clause allowing for party substitution is an interesting issue in public procurement practice.