2016-12-19
Relying on the capacity of third parties: A major change from 14 December 2016

The overhaul of the Polish Public Procurement Law earlier this year brought important changes to the possibility of relying on the capacity of third parties in procedures for award of public contracts. However, it also generated a number of concerns related to the use of the potential of third parties in the framework of a limited tender or other two-stage proceedings—in particular, whether a contractor can rely on the capacities of other entities to obtain a better ranking on the selection criteria and help qualify for the shortlist. From 14 December 2016, this doubt has been eliminated due to entry into force of the Concessions Act of 21 October 2016.

Selection criteria

The amended Public Procurement Law introduced the new concept of “selection criteria.” Selection criteria are only used in two-stage proceedings (limited tender, negotiations with publication, competitive dialogue, and innovation partnership).

In those proceedings, each contractor must fulfil the conditions for participation in the proceeding, but to be invited to tender the contractor must qualify for the “shortlist.” The contracting authority indicates in advance how many contractors will be on the shortlist, but it cannot be fewer than five in the case of a limited tender or three in the case of other two-stage proceedings.

So not all interested contractors can make an offer. The selection criteria serve to select the contractors who will be on the shortlist when the conditions for participation in the proceeding are met by a greater number of contractors than the limit specified by the contracting authority.

What is the problem?

The provisions of the amended act were inconsistent regarding the possibility of relying on the capacity of third parties in order to demonstrate compliance with the selection criteria.

Art. 22a(1) of the Public Procurement Law, governing the possibility of relying on the capacities of other entities, indicated clearly that the contractor can rely on third-party capacity to confirm fulfilment of the conditions for participation in the proceeding (without mentioning “selection criteria”).

On the other hand, however, the provisions on documents submitted by the contractor did take such a possibility into account. Thus Art. 25a(3) indicated that a contractor that relies on the resources of other entities must submit documents to demonstrate compliance with the conditions for participation in the proceeding or the selection criteria. Similarly, a reference to selection criteria was included in Art. 36b(2) of the Public Procurement Law.

Consequently, it was not clear whether contractors could rely on the capacities of third parties to qualify for the shortlist in two-stage proceedings.

The change

From 14 December 2016, these doubts are dispelled by entry into force of the new Concessions Act (Act on Concession Contracts for Construction Works or Services). The Concessions Act contains two provisions amending the Public Procurement Law, mainly to reconcile the existing law with the new act. However, there is a significant hidden change among them that eliminates the doubts discussed above (and which had little in common with the Concessions Act).

Art. 62(5) of the Concessions Act amended the Public Procurement Law by deleting the phrase “or the selection criteria” from the introduction to the list of documents in Art. 25a(3) and from Art. 36b(2).

This change, although inconspicuous from an editorial point of view, is very important, and means that from 14 December 2016, contractors may rely on the capacities of other entities in two-stage proceedings only to show compliance with the conditions for participation in the proceeding. They cannot rely on third-party capacity to meet the selection criteria and thus increase their chances of getting on the shortlist.

It should be noted that the Concessions Act does not contain any transitional provisions relating to ongoing proceedings for award of public contracts. Therefore, it does not directly address the issue of whether this change applies only to proceedings initiated after the date of entry into force of the change, while the existing provisions continue to apply to proceedings initiated earlier.

 

By Tomasz Zalewski




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