Poland has become an attractive country for Spanish companies wishing to take part in public works tenders beyond their borders.
Doing business in Poland
According to the 2020 report of the United Nations Conference on Trade and Development (UNCTAD), the flow of Foreign Direct Investment (FDI) into Poland remained in 2019 at 13.2 billion US dollars.
It is currently the fifth largest economy in the European Union, with a high level in the Human Development Index. For companies interested in improving their internationalisation, like many of those that already work with us and trust our surety bond for export, this can be a very appealing destination for increasing business volume from new territories.
Most of the investments are under the wing of Germany, the Netherlands, Luxembourg and France, with investments in the manufacturing, insurance financial activities, and wholesale or retail sectors.
Some of Poland’s main assets are:
- Its strategic position.
- Its membership of the European Union.
- Economic balance.
- The costs of qualified labour.
A tax structure that is attractive to foreign companies.
To this are added the operation of the dynamic Special Economic Zones and the founding by the Government of the Polish Investment and Trade Agency (PAIZ) to improve investment conditions.
The World Bank places Poland 40th out of 190 countries in its Doing Business ranking (2020).
How to obtain contracts with the Polish government
In January 2021, the Public Procurement Law of 11 September 2019, unified by the Public Procurement Office (Prawo zamówień publicznych), was approved and came into force, regulating the principles of contract award, as well as public procurement policy and the procurement procedure plan.
The matters regulated by this legislation cover:
- All Entities obliged to apply the provisions of the Law
- Exclusions from the application of the provisions of the Law
- Rules for granting orders
- Preparation and execution phases of the contract award procedure
- Procurement procedures and specific procurement instruments and procedures
- Requirements for public contracts and framework agreements
- Competent authorities in procurement matters
- Legal protection measures
- Out-of-court settlement of disputes related to the performance of public procurement contracts
- Procurement control and financial penalties.
What the contract award procedure is
It is a process that begins with the delivery or publication of a notice, giving way to the invitation to take part in the auction or public tender, and in which a series of activities indicated by the terms of the contract take place.
Finally, the best bid is selected from among those submitted, or the possible negotiation of public procurement contracts.
Changes to the current regulations
This new law implements several new Directives, such as:
- Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement.
- 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.
- Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works, supply and service contracts by contracting authorities or entities in the fields of defence and security.
- Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.
- Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.
Some of the modifications to the regulations relate to matters such as:
- The supervision of procurement
- Decision-making and international cooperation
- Analysis of the functioning and procurement regulations, with the aim of ensuring the uniform application of the procurement provisions
What is specified in the provisions of this new law
As regards the regulatory provisions of the Law, they will apply to the award of:
- Classic contracts and the organisation of competitions, whose value is equal to or greater than PLN 130,000, by public contracting authorities.
- Public service contracts and the organisation of competitions, whose value is equal to or greater than the EU thresholds, by sectoral contracting entities.
- Contracts in the field of defence and security, whose value is equal to or greater than the EU thresholds, by public contracting authorities and sectoral contracting entities.
- Classic contracts and the organisation of competitions whose value is equal to or greater than the EU thresholds by subsidised contracting authorities as established in the regulations in force.
For what are known as trivial contracts, these being the award of classic contracts whose value, excluding value added tax, for a single purchase is less than PLN 130,000 but not less than PLN 50,000.
The EU thresholds in relation to the value of contracts or services are also specified, indicating the articles of the corresponding Directives where aspects such as the procurement, coordination and award of contracts and services are detailed.
Types of contracting entities to which the legislation applies
The provisions of the Law will apply to public and sectoral contracting authorities.
Public contracting authorities
1️⃣ Units of the public finance sector
2️⃣ State organisational units without legal personality
3️⃣ Legal persons, constituted for the specific purpose of meeting needs of a general nature, not of an industrial or commercial nature
4️⃣ Associations of entities
Sectoral contracting entities
1️⃣ Public contracting authorities insofar as they carry out one of the sectoral activities covered by the legislation
2️⃣ Entities that carry out one of the sectoral activities
Commitments and responsibilities of the contracting authority
The contracting authority, when awarding contracts, will ensure compliance with the following points:
- It must ensure equal treatment among contractors and commit to fair competition
- It must be transparent and proportionate in all its actions
In addition, the contracting authority for public contracts must ensure:
- That the quality of supplies and provisioning is of the highest quality, within the budgetary resources of the contract.
- That the best social, environmental and economic results are obtained in relation to the investment made, provided that any of these improvements is viable within the budgetary capacity of the public contract.
What the procurement procedure includes
The procurement plan consists of several sections to be taken into account:
- The object of the contract
- The type of contract according to the division into works, supply or service contracts
- The method or procedure envisaged for the award of the contract
- Indicative value of the contract
- The expected start date of the contract award procedure.
The contracting authority is allowed to purchase products and services in order to resell them to contracting authorities of other Member States of the European Union.
However, it does not allow the assignment or award of contracts and the organisation of competitions jointly with the contracting entity of other Member States.
Tender guarantees
When taking part in the tender to obtain the public contract, it is necessary to offer guarantees that back the company to which the contract is awarded.
These tender guarantees can be of various types:
- In cash
- Bank guarantees
- Insurance guarantees
- Guarantees granted by entities as indicated by the Polish agency for Enterprise Development
Selection of the best bid
It is the contracting company that is responsible for selecting the most favourable bid, this being the one that presents the best quality-price or cost ratio, or the bid with the lowest price or cost.
Bid evaluation criteria
To select the most advantageous bid, it can be done on the basis of certain criteria:
- Quality and price or cost criterion
- Price or cost criterion
The qualitative criteria may include criteria such as:
- Quality, aesthetic and functional criteria, taking into account the accessibility of people with disabilities and the needs of end users.
- Social criteria, taking into account professional and social integration.
- Environmental criteria, such as energy efficiency
- Innovative criteria
- Service criteria, such as technical support, delivery and implementation times.
The most advantageous bid is selected solely on the basis of qualitative criteria if, on the basis of regulations or decisions of the competent authorities of general application, the price or cost is fixed.
At Sammy Free we are specialists in advising on tenders to work with Public Administrations.
Our agents are at your disposal.
