2021-09-16
Do the non-EU contractors and the non-GPA contractors have a free access to public tender in Poland under the new Polish public procurement law (PPL2021)?
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In July 2019 the European Commission published "Guidelines for the participation of third-country tenderers in the EU public procurement market and for the marketing of goods from third countries", in which it stated that "third-country economic operators that have not concluded any agreement providing for the opening of the EU public procurement market or whose goods, services and works are not covered by such an agreement are not guaranteed participation in EU procurement procedures and may be excluded from them".

In Poland, until the end of 2020, the former PPL Act had a provision, generally reflecting article 25 of classical directive 2014/24/EU (and article 43 of sectoral directive 2014/25/UE) whereby contracting authorities were required to treat equally the EU and non-EU, but GPA (or other international agreement with EU) contractors. A contrario – some claimed that the obligation to ensure fair competition and equal treatment was not extended to no EU contractors and contractors from countries not covered by international agreements with the EU. If a contractor was non-GPA, it was not against the PPL to treat them “differently” (for example, track record from EU of GPA could be preferred).

Since January 2021, the new PPL Act 2021 has been in force and there is no equivalent of art. 7.1a of the previously binding act. Does the lack of the identical provision mean that the general principle has been changed?

Not necessarily, for (at least) following reasons:

  • The explanatory to the draft of the PPL2021 Act confirms that it takes into account the EU laws previously implemented in the Polish legal system, particularly the classical directive and the utilities directive.
  • Under the directives:
  • the contracting authorities have to comply with their obligations under the GPA and other international agreements to which the EU is a party by applying the Directives to economic operators from signatory third countries,
  • the award criteria or the conditions of performance shall not be selected in a discriminatory manner between economic operators from EU countries or from third countries that are parties to the GPA or to Free Trade Agreements to which the Union is a party,
  • the contracting authorities have to accord to works, supplies, services and economic operators from countries that are signatories to international agreements to which the EU is a party and countries that are signatories to the GPA treatment no less favourable than that accorded to works, supplies, services and economic operators of the Union.
  • Under new PPL2021, the cost effectiveness approach in bid assessment criterion (related to environmental issues), in terms of the method for the assessment of costs imputed to environmental externalities, need to ensure that the provision of data by normally diligent economic operators, including economic operators from third countries being parties to the World Trade Organization Agreement on Government Procurement or other international agreements to which the European Union is a party, is not unduly burdensome.
  • Tender evaluation criteria are meaningful and the PPL2021 prohibits causing “inconvenience” to EU and GPA contractors (only).

 

On the other hand, there is a literal wording of Article 16(1) of the PPL Act requiring equal treatment of contractors and the lack of clear provision reflecting the rule set out in a former article 7.b of the PPL.

However, argumenta non numeranda, sed ponderanda sunt so Polish National Appeal Chamber and Polish courts may face a sophistic debate, particularly in the light of upcoming huge public investments in Polish energy, technology and transportation sector.   




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We discuss judgments from the European Court of Justice and their influence on the interpretation of public procurement law in Poland. We follow and comment on legislation in the European Union. We address current issues in Polish case law.

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