public procurement | In Principle

The new FIDIC contract conditions place greater emphasis on alternative dispute resolution. This approach is reflected in the increased role of dispute avoidance and adjudication boards.

A new edition of the suite of FIDIC contracts was published during the International FIDIC Users’ Conference in London on 5 December 2017. The publication includes new approaches to issues such as filing claims and procedural aspects of the engineer’s role in their evaluation.

Electronic procurement documents are coming. Starting 18 April 2018, the European Single Procurement Document (ESPD) will be available only online. Contracting authorities will have to include this requirement in all terms of reference while contractors will have to adjust to the new regulations.

On 25 January 2018 the Commission sent a formal summons to Austria to eliminate irregularities in national law limiting contractors’ rights to seek review of actions by authorities conducting public procurement procedures.

Even when work was underway on an amendment to the Public Procurement Law in 2016, there was some controversy surrounding the question of in-house procurement. In late 2017, the National Appeal Chamber rejected the first contracts concluded under the new provisions between local government authorities. It would be unfortunate if at this time a practice emerged in Poland stifling cooperation between public authorities working together to carry out their duties.

A private entity carrying out a project co-financed using EU funds makes use of public money, and therefore is required to comply with rules on fair competition and equal treatment of contractors. Accordance to government guidelines, to do this it should use market research or comply with competition requirements. And if it becomes a contracting authority, it must apply the Public Procurement Law.

A year ago we reported that an amendment to the Public Procurement Law required contractors and subcontractors to hire workers under an employment contract if they fell under Art. 22 §1 of the Labour Code. But it was not clear how contracting authorities could check whether contractors were complying with this requirement without infringing the personal data of the contractor’s staff. These doubts have now been resolved in a joint opinion issued by the president of the Public Procurement Office (UZP) and the Inspector General of Personal Data Protection (GIODO).

During the course of construction projects, issues often arise involving additional work or substitute work. Contractors perceive even minor departures from the original plans as additional work and demand an increased fee, while investors not only expect all their instructions to be followed within the agreed price, but treat any opposition by the contractor as a breach of contract. This dynamic works similarly between the general contractor and subcontractors. But the realities of the real estate development process often require work to be done even when the parties take different views of the work and do not sign a separate contract covering it. Is an additional fee nonetheless owed for performing such work?

The ban on trading in references was supposed to cure the ills of the public procurement market. But every drug has side effects—in this case, disorientation of contractors and absurd conclusions when verifying fulfilment of the conditions for participation in public tenders.

The Court of Justice held in Esaprojekt sp. z o.o. v Województwo Łódzkie (Case C-387/14) that a contractor entering a tender individually cannot rely on the experience of a group of contractors it was a member of in performing another public contract if the contractor was not actively and specifically involved in performance of the contract. The ruling, issued in the context of a Polish tender, is widely regarded in Poland as controversial. But is the conclusion by the Court of Justice requiring experience to be based on actual experience really debatable?

There has been a great divergence in interpretation of the grounds for retention of bid bonds. A recent resolution by the Supreme Court should unify the practice of contracting authorities on this issue. But the justification for the resolution itself admits certain exceptions from the obligation to retain the bid bond, even when the documents submitted by the contractor fail to confirm fulfilment of the requirements of the tender.

In public procurement procedures, contractors are often called on to justify the price they offer. If the explanation is too general or imprecise, the offer can be rejected.