The latest draft amendment of the Act – Public Procurement Law (PrZamPubl) mostly concerns the settlement of tender disputes. On the 1 hand, it raises the amount of entries which entrepreneurs must pay to be heard by the National Appeal Chamber (with the most costly orders up to PLN 150 thousand), on the other, it aims to harmonise the case law of the Chamber. This is to include the introduction of the anticipation for KIO to adopt resolutions on the explanation of provisions that will bind all the jurisprudence.
– The introduction of legal solutions to support uniformity in the area of explanation of the provisions of the PrZamPubl Act was 1 of the overriding objectives of the amendment. It is widely known and, as it seems, uncontested that the disunity of interpretations, not only in the area of the case law of the House, but besides in the area of checks carried out by various qualified institutions, is simply a phenomenon which is far undesirable and has a negative impact on issues related to the conduct of public procurement procedures, among others, in the area of public spending, justifies the request for changes by Michał Trybunusz, the press spokesperson of the Public Procurement Office, who prepared the draft amendment.
Uniformity needed, but not at all costs
The experts whose ‘Rzeczpospolita’ asked for comment have no uncertainty that the differences in the case-law origin uncertainty on the public procurement marketplace on the 1 hand and encourage the raising of charges in tenders on the basis of ‘and weary’. However, each of our speakers has greater or little concerns about the direction of the proposed changes.
– I realize the request to harmonise the case law, but this must not lead to a weakening of the independency of the members of the KIO. It is crucial to ask what is the origin of the discrepancy, and it is undoubtedly incomprehensible and unclear rules. alternatively of a mechanics that can in practice grant very broad competences to 15 people, 1 must take the difficulty of reducing specified doubts," emphasises Dr Wojciech Hartung, a council at Addleshaw Goddard.
He points out that the resolutions of binding jurisprudence will be able to pass by majority with the presence of half of all members of the CIO, which present has 55 people. This in practice means that a number will be able to impose most of its interpretation.
Some feel that there may even be concerns about whether the home inactive has the position of court. Without this, it could not even address the questions referred for a preliminary ruling to the Court of Justice of the European Union.
– Until now, KIO has been considered a court by the TEU, due to its independency and ruling under the laws. I do not know whether this will stay valid after the changes that will force Members of the home to comply with resolutions, i.e. non-statutory standards, especially erstwhile they have a different opinion on the explanation of a given provision," notes Dr hab. Włodzimierz Dzierżanowski, lecturer at Łazarski University, legal advisor at Sienna Dzierżanowski sp.k.
– I have an ambivalent feeling about this proposal. On the 1 hand, the case law of KIO should undoubtedly be more uniform. On the another hand, I fear that this is not besides much interference with the judicial independency of the members of the House. specified binding power, for the ultimate Court's compositions, in Polish law only the resolutions of the ultimate Court having the power of the regulation of law – comments Aldona Kowalczyk, legal counsel from 4K Legal.
Like SN resolutions
Even general assemblies of judges of appeal courts cannot impose their explanation of the rules. Meanwhile, according to the draft, specified power will be exercised by resolutions of the General Assembly of KIO, which in tender disputes serves as a specialised court of first instance.
– The proposed provisions supply that resolutions will be adopted by the General Assembly of the House, which are made up of all members of the House. This allows the members of the home to discuss the differences and to take a decisive decision in this area. At the same time, it should be stressed that the resolutions will not concern circumstantial cases, but differences in case law – Michał Trybunusz rejects the allegations.
However, the problem may arise not only if the decision-making body in a peculiar case has a different opinion than the majority of the General Assembly. The Public Procurement Court (SZP), the second instance, will no longer be bound by resolutions. What then?
– I do not know what the members of the CSI should do erstwhile the SZP does not agree with the explanation put forward by the resolution of the House. Especially if they share the direction of a higher instance. They are to decide not only with the cognition that their conviction will be repealed, but besides against themselves? – wonders Dr. Vladimir Dzierżanowski.
– Even if the jurisprudence of the SZP is different, by virtually reading the rules, the members of the CIO will gotta comply with the resolution. Is this going to mean that there may be a situation in which the full sentence-making body will make separate opinions? This impasse will proceed until a possible fresh resolution, which will adapt the explanation to the case law of the higher court," adds Dr Wojciech Hartung. He wonders whether specified a solution does not violate EU law. Most of the provisions of the PrZamPubl Act have its origin in the Directives and their binding explanation can only be made by the TEU.
Explanations and guidelines
Interpretational uniformity is besides intended to supply explanations and guidelines issued by the PPO. They besides rise concerns. More importantly, according to the proposed Article 601(3), "the contracting authority shall not have adverse effects in so far as it complies with legal clarifications".
– I am afraid that the provisions on explanations may lead to the creation of a duplicative law, an explanation imposed by the UZP," says Aldona Kowalczyk.
When reading a provision literally, 1 may wonder if the KIO would besides gotta comply with the regulation that compliance with the explanations cannot have adverse effects on the contracting authority. The PPO shall guarantee that it is only about the control of the award of contracts and explanations shall not bind the CIO.
– The provision will only apply to the control area of the procurement process. The regulation is to be added to the provision of Article 601 of the PrZamPubl Act, which is included in the “Contracts Control” section. This means that the position of the president of the UZP as expressed in the legal explanations will not bind KIO,” explains Michał Trybunusz.
However, this does not dispel the doubts asked by the “Rz” experts.
– Even if this is accepted, there is inactive uncertainty as to how this will affect the independency of the administrative courts, which will yet recognise complaints concerning the control of contracts financed by EU funds, which the president of the UZP is obliged to control too," notes Dr. Włodzimierz Dzierżanowski.
– In addition, these explanations will necessarily affect performers. Advantages for 1 can be detrimental to another, putting him in a much worse situation – he adds.
The explanations and guidelines are intended to be additional tools to guarantee uniform application of the rules alongside the existing legal opinions of the president of PPO.
– I admit that I do not realize the thought of introducing these fresh instruments – explanations and guidelines. The president has the power to issue opinions – if that is not enough, the consequences can be clarified. That's adequate – says Dr Wojciech Hartung.
Supreme Court in Poland
The task besides includes an increase in the entry to be paid by the contractor to be recognised by the KIO. After the value of EUR 30 million in the contract for construction works, entrepreneurs will gotta pay PLN 150 1000 for 1 appeal. In practice, this means that tendering disputes will become the most expensive, throughout the Polish court. The maximum charge in civilian matters is limited to PLN 100 thousand.
An entry of PLN 60 1000 will should be paid for works contracts worth between EUR 15 million and EUR 30 million. Under EUR 15 million (but above EU thresholds) the cost of resolving the dispute will be PLN 30 000. At least (12 1000 PLN) entrepreneurs will pay for supplies and services below the EU thresholds, the following thresholds will be: PLN 15 1000 and PLN 24 thousand. For comparison, present the lowest entry is PLN 7.5 1000 and the maximum 20 thousand.
Legislative phase: public consultation
