Public procurement law and public-private partnerships

About this practice area

Tender procedures as provided for by the Polish Public Procurement Act on require expertise, accuracy and attention to detail. As experts involved in the major public procurement procedures in Poland, we have mastered all of these elements to perfection.

Our Public Procurement Law Team advises at all stages of the procedures: from drafting and publication of contract notices to conducting the procedure and any other procedural support. We provide contracting authorities with assistance in selecting the contractor and concluding the agreement, as well as with its implementation and any disputes that arise. We assist contractors on legal issues as well, guiding them through the tender procedure until the agreement is concluded. We also represent contractors in any disputes that arise and support them at the contract implementation stage. In particular, we work with Clients in the ICT, IT, telecommunications, construction, energy, medical, and pharmaceutical sectors. Lawyers at the firm are active members of the Polish Chamber of Information Technology and Telecommunications (PIIiT) and working groups appointed by the Polish Public Procurement Office (UZP).

Our strategy is aimed at achieving the Client’s specific business goals and minimizing risks. When advising on procurement law, we do not focus solely on the procedure. We cater for all the interests of the Client, anticipating possible consequences.

What we do?

If you are a contractor, we can do the following for you:

prepare draft questions for the contract notice and tender specifications,
review tender documents, including the tender specifications and the contract template or its essential provisions, in particular with regard to legal risks and the requirements that may impede the award of the contract,
assist with drafting the bid,
assist with drafting clarifications concerning the bid and its supplementation at the request of the contracting authority,
prepare consortium agreements and provide opinions on them,
draw up agreements with subcontractors and resource providers and assist with negotiations,
draft appeals regarding the selection of the optimal bid and acts and omissions of the contracting authority,
represent the Client before the National Appeals Chamber (KIO) and district courts.

If you are a contracting authority, we can do the following for you:

assist in the effective planning of procurement strategies,
offer consultations on preparations for the procedure, including the choice of type of procedure and drafting the conditions for admission to the procedure and criteria for the evaluation of tenders,
draft or evaluate any tender documents,
participate in the work of the tender evaluation committee, including as experts of the committee,
draft replies to requests from economic operators to clarify the content of tender specifications,
draft changes to the contract notice and other tender documents,
review tenders and requests to participate in the contract procedure,
draft requests for clarification or additions and requests for permission to correct a mistake,
draft information about the selection of the optimal bid or information about annulment of the procedure,
draft replies to information about activities which do not comply with the Act,
examine appeals lodged in the appeal procedure and draft responses to appeals,
plan and implement an exit strategy to avoid vendor lock-in,
assist in monitoring public procurement expenditure.

Cooperation benefits

In matters of Public Procurement Law, it is well worth using the help of an experienced law firm. Thanks to our experience, combined with practical knowledge about the course of procedures compliant with procurement law, we are capable of making strategies that bring tangible results to our Clients.

Our team of procurement professionals has been working on public procurement law for years. We have carried out major infrastructure projects, especially in the wider ICT market. We also successfully advise entities from other innovative sectors such as pharmaceutical and medical ones. Our Clients may count on our assistance in procedures for EU-funded projects, initiatives carried out in the public-private partnership and on our services of legal representation before the National Appeal Chamber and courts.

Besides, we are happy to share our expertise during training. We train the staff of commercial departments responsible for the public sector as well as executives, project managers and persons responsible for conducting public procurement and contract implementation. We are well aware that our Clients might require specific expertise, therefore we always strive to pass on our knowledge in the most accessible manner. Our effectiveness is demonstrated by hundreds of projects and procedures which we have carried out successfully.

Why choose us?

We provide assistance and strategic advice throughout the procedure.
We understand the Clients’ specific activity and aim to achieve meaningful business goals.
We respond to your needs and ensure our availability for implemented projects.
We act quickly and can support you in appeals to the National Appeal Chamber and District Courts.
We offer a multi-disciplinary approach to fulfilling the tasks at hand.

Advisers

Agnieszka Wachowska

Attorney‑at‑lawCo‑Managing Partner

agnieszka.wachowska@traple.pl

Piotr Nepelski

Attorney‑at‑lawManaging Associate

piotr.nepelski@traple.pl

Karolina Grochecka-Goljan

Attorney‑at‑lawSenior Associate

karolina.grochecka@traple.pl

Marta Pasztaleniec

Attorney‑at‑lawSenior Associate

marta.pasztaleniec@traple.pl

Małgorzata Kotwica

Associate

malgorzata.kotwica@traple.pl

03 Apr 2024

The Public Procurement Office confirmed the possibility of the contracting authority's possibility to transfer receivables due to a subcontractor

The contracting authority awards the public contract to a specific contractor selected through a tendering procedure. Consequently, the contractor’s ability to assign the rights and obligations that arise from the contract with the contracting authority to another entity is significantly limited. However, the transfer of a monetary claim under the contract does not lead to a change in the parties to the concluded contract – the contractor selected in accordance with the law remains obliged to perform the public contract. To date, however, there has been no clear position from the Public Procurement Office confirming this possibility, with the result that contracting authorities may have been reluctant to make payments to subcontractors.

On 22 January 2024, the Public Procurement Office posted an opinion on its website[1] , in which it clearly indicated that:

29 Dec 2023

Requirements applicable when subcontracting in a public tender

A crucial determination to be made prior to submitting a bid in a public tender is the available resources of the contractor concerned. This will require a precise examination of the contractor’s capacity to perform the tender contract properly, in view of their organizational and technical resources.

15 Dec 2023

Exclusion of a contractor due to prior convictions

When a contractor applies for a public tender in Poland, they are required to show that there are no grounds for excluding them from the procedure. One cause of exclusion is legally binding conviction of a contractor (natural person), or persons vital to the contractor’s business activity, for certain offences. Persons key to the business are usually management board or supervisory board members in the case of capital companies, partners in the case of partnerships, and commercial proxies. According to the specific circumstances, this problem might also affect a firm that makes resources available to a contractor.

21 Sep 2023

IT sector’s recommendations on indexation posted on Public Procurement Office website

The Public Procurement Office has recently published a set of sample indexation clauses drawn up by IT sector organizations on its website. This is a document intended primarily as an aid for contracting authorities, as they have an obligation to include these clauses in public tender agreements.

30 Jun 2023

Transfer of claims from a public procurement contract

Public procurement contracts are subject to several important limitations on freedom of contract. This gives rise to the need to take a case-by-case look at certain contractual issues which are known under the provisions of the Civil Code (CC) , but should be interpreted taking into account the wording and purpose of the regulations of the Public Procurement Law (PPL) . Such issues include the transfer of claims from the remuneration for the performance of the contract, the securing of this remuneration or the possibility of assuming a debt in the form of an obligation to perform the contract.

04 Jan 2023

More intense measures by the Polish Public Procurement Office to draw up standards for indexation of fees in public construction work contracts

Under article 439 of the Public Procurement Law, where public procurement agreements are concluded for a term exceeding six months, a contracting authority is required to specify the rules on adjustment (indexation) of a contractor’s fee if prices of materials or costs of performance of the contract increase.

04 Aug 2022

Indexation of remuneration in public tender contracts

Changes in prices of materials and raw materials on international markets have a major effect on the Polish public procurement market. The May 2022 consumer price indices published by the Central Statistical Office show an increase in prices of goods and services in May 2022 of 13.9% (prices of goods by 14.9% and services by 10.8%) compared to the same month in the previous year.

09 Jun 2022

A new form of cybersecurity public tender in Poland. Another in the series of amendments to the National Cybersecurity System Act of 15 March 2022 has been released

The National Cybersecurity System Act of 5 July 2018 forms the legal and institutional bases for cybersecurity in Poland. On 15 March 2022, another version of the proposed amendment to the act was published on the Government Legislation Centre website. This could have major implications, including for the public procurement market in Poland. The proposal allows a business undertaking to be classified as a high-risk supplier, and this may result in a bid being rejected.

13 Oct 2021

New guidelines issued by the President of the Polish Public Procurement Office on tenders for computers for use by contracting authorities

The Polish Public Procurement Office (UZP) has published UZP President guidelines on awarding public contracts for supply of computers. This is a document of technical nature, containing practical tips on drafting documentation in tenders for supply of various types of computers (desk-top computers, portable computers, all-in-one computers, etc.). The document does not form part of the current legal regime, and only specifies best practices. It has been approved by the Council of Ministers Committee for Digital Affairs and by the Central Anti-Corruption Bureau. The document is available here.

02 Jul 2021

Can a court put conclusion of an agreement by a contracting authority on hold pending review of a complaint contesting a National Appeals Chamber ruling?

In Poland, filing a complaint with the KIO concerning the outcome of a tender or the wording of tender documentation (the first instance) is the principal legal remedy. Under the Public Procurement Law of 11 September 2019, a KIO ruling can be contested before the Warsaw Public Procurement Court (second instance). A complaint is not a very appealing legal remedy, however, because under the law, once the KIO has delivered a ruling, the contracting authority is not required to wait for the ruling on the complaint, and may proceed to conclude an agreement with a contractor even if a competitor intends to contest the KIO ruling in the second instance. In this scenario, even if the contractor successfully contests the KIO ruling in court, it still will not be awarded the contract. At best, the contractor can expect the court to find the contracting authority to be in breach of the act of law, and can seek compensation in a separate lawsuit that will be expensive, difficult to win, and lengthy.

Offices