On July 28, 2016, a far-reaching amendment to the Public Procurement Law (PPL) takes effect. The amendment implements into Polish law the provisions of new EU directives that coordinate the rules for awarding public contracts, including the new directive on procurement by public sector bodies (Directive 2014/25/EU). As regards the utilities regime, the amendment makes several, significant modifications. A brief discussion of selected amendments follows below.
- Pursuant to the amended PPL, units from the public finance sector or other state-owned organizational units not having legal personality (or associations of such entities) may also act as contracting bodies under utilities contracts on the proviso that the contracts awarded by such entities serve the purposes of performing their activities as entities operating in public services sectors.
- The definition of body governed by public law was supplemented by specifying that such body may not operate in ordinary market conditions, it is not profit oriented and it does not incur any losses resulting from its activities.
- The definition of specific or exclusive rights was made more tightened up.
- Under the amended law, activity in public services sectors includes exclusively the extraction of oil and gas and their natural derivatives (with exploration and prospecting for them no longer being recognized as activity in utilities sectors) as well as the extraction of or exploration (without prospecting) for brown coal, pit coal or other solid fuels.
- As regards the energy sector, it has been specifically provided that the distribution of electricity, gas or heat should also be construed as wholesale or retail sale.
- New conflict of law rules will apply where the subject-matter of the contract includes: (1) contracts awarded for the purposes of performing at least two different types of activity in utilities sectors, or (2) contracts awarded for the purposes of performing at least one type of activity in utilities sectors and other contracts (e.g. conventional ones).
- Utilities contracts may be awarded through the competitive dialogue procedure, which will be one of the basic procedures, which means that the application of this procedure will not be contingent on the fulfillment of any statutory premises for its use.
- Utilities contracts may be awarded through the innovation partnership procedure ‒ a new procedure introduced under the EU directives.
- As regards single-source procurement contracts, an existing contractor may also be awarded a contract which consists in the repetition of similar services (in the existing naming convention, it was known as a subsequent works or supplies contract), provided that the option to award the same was stipulated in the tender notice for the basic contract. Hitherto, this possibility only existed for construction works or supplies.
- A standard deadline was adopted for receipt of applications for participation in multistage proceedings, with the basic deadline being set at 30 days from the date on which the contract notice is sent for publication or the call for expression of interest is made, and 15 days in exceptional cases.
- The amendment to the PPL also introduces the notion of social services which comprise, among others, some health care, education, culture, hotel, catering and legal services. In the case of utilities contracts for the services of such type, the threshold for the application of the PPL provisions is €1 million.
- The amended law contains regulations pertaining to cross-border ventures (in the form of a single contract, framework agreement or dynamic purchasing system), namely, those to be completed by a contracting authority with its registered office in Poland and at least one contracting authority with its registered office in any other EU member state. In such case, the contracting authorities completing the venture should enter into an agreement to define the parties' obligations and the manner of their allocation, the governing law and the procedure organization, unless they are regulated in an international agreement executed by and between Poland and EU member states. Additionally, the contracting authorities will be able to create, by way of an agreement, a joint entity with contracting authorities from the other EU member states (and specifically, the European Grouping of Territorial Cooperation).
- The amended law makes a significant change for contracting authorities which are electricity transmission system operators or electricity combined system operators and the contractors taking part in proceedings conducted by them, namely, if the subject-matter of the contract to be awarded by the contracting authority comprises services necessary for the operator to warrant the proper and safe functioning of the electrical power system without compromising its operational reliability and the quality parameters of electrical energy, in compliance with the transmission or distribution system code, the contracting authority will be able to select multiple tenders, provided that this option is stipulated in the contract notice or in the Terms of Reference, if the procedure is not launched by way of a contract notice.
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