Work on amending the Act of 11 September 2019 on Public Procurement Law is in progress. Their aim is to enable the restriction of the participation of economic operators from the so-called third countries in public procurement procedures. The proposed amendment responds to the judgement of the EU Court of Justice (C-652/22; Kolin Inşaat Turizm Sanayi ve Ticaret AȘ v Državna komisija za kontrolu postupaka javne nabave; ECLI:EU:C:2024:910). It confirmed that economic operators from countries that have not concluded relevant international agreements with the EU do not have guaranteed access to the EU public procurement market. 

In light of the proposed changes: 

  1. the contracting authority shall be obliged to ensure treatment as favourable as that granted to economic operators from the European Union in relation to economic operators from countries which are: 
    • a party to the World Trade Organisation Agreement on Government Procurement and 
    • a party to other international agreements guaranteeing, on the basis of reciprocity and equality, access to the public procurement market, where the European Union is also a party; 
  1. the contracting authority will be able to specify in the contract documents or the contract notice that: 
    • economic operators from third countries other than those referred to in item 1 may also apply for the award of the contract as members of a consortium; 
    • the entity whose potential is exploited by the economic operator in order to meet the conditions for participation in the procedure, a subcontractor or a further subcontractor may be an entity from a third country other than those listed in item 1; 
  1. the contracting authority, in respect of economic operators from third countries other than those referred to in item 1, will be able to define less favourable contract conditions; 
  1. in addition, in the case of sectoral procurements (e.g. electricity or fuel mining procurement), the contracting authority will be able, in particular, to reject a tender in which the share of products (including software used in the equipment of ICT networks), originating from: 
    • European Union Member States, 
    • countries which have concluded agreements on equal treatment for businesses with the European Union, or  
    • countries to which the provisions of Directive 2014/25/EU apply by virtue of a Council decision1, 

does not exceed 50% if it is provided for this in the tender documentation. 

Importantly, if the contracting authority does not provide in the procedure documentation that economic operators from countries other than those referred to in item 1 may compete for the contract, it will be obliged to reject the tender of such a economic operator. 

This is a revolutionary change in terms of public procurement. Currently, contracting authorities, respecting the principle of equal treatment, are obliged to treat all economic operators equally, regardless of their country of origin. Once the new rules come into force, they will be able to diversify the access of economic operators to the proceedings depending on their country of origin, in particular, by shaping the conditions for their participation differently. This may relate, in particular, to conditions which affect the contract or the award procedure, resulting in particular from the description of the subject-matter of the contract, the requirements for performance of the contract, the criteria for evaluation of the tenders, the procedural requirements or the draft terms of the public contract. 

  1. Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC   ↩︎