Public procurement: A new approach to amending the law
The Ministry of Economy, in conjunction with the Prime Minister’s Office and the Public Procurement Office, has begun studying the operation of the public procurement system in Poland to develop recommendations for amending the Public Procurement Law.
The European Union’s new procurement directives were adopted on 26 February 2014 and published on 28 March 2014:
- The new Classic Directive (2014/24/EU), repealing Directive 2004/18/EC
- The new Utilities Directive (2014/25/EU), repealing Directive 2004/17/EC
- The Concessions Directive (2014/23/EU).
The new directives enter into force 20 days after publication in the Official Journal of the EU, but the deadline for transposition into the legal systems of the member states is not until 18 April 2016. The effective date of the repeal of the existing procurement directives is set for the same date.
What do the new directives offer? The drafters surveyed the functioning of the EU procurement system. Based on these studies, the new directives provide for simplified procurement procedure and introduction of a “light regime” for selected types of contracts (e.g. services currently classified as non-priority—the new rules eliminate the division into priority and non-priority services). Broader application of the negotiated procedure was called for, as well as solutions providing easier access to the public procurement market by small and medium-sized enterprises. The changes involve for example the documents that contractors must submit in proceedings, recognition of the performance potential of SMEs, and a requirement to divide contracts under the rule “divide or justify.” The directives regulate in detail the possibility of modifying procurement contracts, allowing replacement of the contractor in certain circumstances. They also provide for a mechanism of direct payments for subcontractors. The new directives provide for a different typology for evaluation of offers, bringing to the fore the criterion of the most economically advantageous offer, and introducing provisions for strategic use of public procurement, i.e. enabling pursuit of other state policies when implementing public contracts.
Recasting of the EU directives has created some excitement in the Polish procurement community, where there were already calls to simplify procurement procedures and encourage SMEs to participate more actively. The obligation to amend the Polish Public Procurement Law within the next two years (the implementation period) may be used as an opportunity to improve the quality and functionality of the act.
Pursuant to a decision by a government committee, proposals and recommendations for changes to the Polish regulations are to be presented not only by the Public Procurement Office, but also by the Ministry of Economy. The active involvement of the ministry is intended to obtain the views of the institution charged with oversight of business activity in general when it comes to amending the procurement regulations. As it has been pointed out, the Public Procurement Office itself is not one of the busiest contracting authorities.
Grzegorz Lang, director of the Department for Improvement of Economic Regulations at the Ministry of Economy, gave a presentation on the ministry’s intentions for the work on implementation of the new directives at a debate on 8 May 2014 at Polish Confederation Lewiatan. Lang stressed that implementation of the new rules will not be solely a legislative initiative. The main goals the ministry is devoted to are improvement in the quality of the Public Procurement Law and shaping of best practice in applying the law. The ministry also seeks to unify the decisional practice of the National Appeal Chamber and ensure that representatives of the fields affected by appeals can participate in the process of ruling on appeals.
The direction being taken toward shaping the legal environment for public procurement is promising. This approach provides hope for introduction of regulations firmly embedded in the procurement system and furthering its main goals, in place of selectively amending the act to meet emergent needs connected with specific proceedings.
The Ministry of Economy, in cooperation with the Prime Minister’s Office and the President of the Public Procurement Office, has already begun analytical work on evaluation of the operation of the public procurement system in Poland. The goal is to draft a white paper with recommendations for increasing the effectiveness of the system for award of public contracts. As a member of Polish Confederation Lewiatan, Wardyński & Partners is participating in this work through an expert group reviewing procurement procedures and the appeal system, seeking to simplify and rationalise public procurement.
Mirella Lechna, Infrastructure & Transport and Public Procurement & PPP practices, Wardyński & Partners
