The Polish market for public contracts is growing rapidly. Many large-scale infrastructure projects are underway. Our Japanese desk follows market developments as they occur and informs clients about forthcoming investment projects they may find interesting. Our clients appreciate this service very much, as deadlines for filing tender documents are short and only early awareness of a tender enables clients to get their bids ready before the submission deadline.
For example:
- In 2014–2020, the total value of planned investment projects in the railway sector alone was PLN 58.6 billion.
- In 2014 alone, investments in development and modernisation of seaport infrastructure was to exceed PLN 259 million, in 2015 PLN 309 million and in 2016 PLN 168 million. There is a plan to build or refurbish wharves, depots and warehouses as well as roads and rail lines.
The rules for concluding contracts between private entities and entities from the public-finance sector or other entities financed from public resources are set forth in the Public Procurement Law of 11 September 2019 (applicable to all tenders initiated since 1 January 2021), which applies to contracts for supplies, construction works, and services. Entities obligated to use public contract award procedures are state and local authorities, bodies governed by public law, associations of such bodies or so-called public bodies, as well as companies supplying water, energy, transport, and postal services.
Public tender proceedings in Poland are conducted electronically. All tender documentation is published on the tender website. To place a request for participation in the bid procedure, the bidder has to register on the tender platform and possess a qualified electronic signature issued by a trusted service provider.
Basic principles of the Polish public procurement procedure include fair competition, equal treatment of contractors, impartiality and objectivity of persons involved in award procedures, the public nature of award procedures, and the primacy of open and restricted procedures. The Polish public procurement market is fully open to foreign companies. Any national or even European preference is forbidden. Please note, however, that the above does not apply if the tender is not subject to the multilateral Government Procurement Agreement (GPA). This means that potentially the contracting authority may set other participation criteria for EU companies than for bidders from outside the EU, and may also prohibit non-EU companies from submitting offers.
Tender documentation and translation
The terms of the invitation to bid in proceedings are set out by the contracting authority in the contract notice. They should be set in a manner ensuring equal treatment of contractors and fair competition as well as assuring that the contracting authority will award the contract to a bidder with specific experience with the subject matter of the procurement.
In an open tender procedure, a draft contract is provided by the contracting authority, and it constitutes an integral part of the tender documentation. The draft contract can only be amended by the contracting authority, and its wording cannot be negotiated. The bidder must agree to the wording of the draft contract when submitting the offer. The winning bidder must conclude a contract in the same wording as provided in the tender documentation. That is why any comments on the draft contract can be made only before the date for submission of tenders.
As soon as the tender proceedings are announced, we will review the tender documentation and procure a translation of the legal part of the documentation. The translation will be provided together with checklists and our comments with suggested actions.
We will provide you with a timetable of successive actions to be taken during the procedure and make sure that this timetable is kept. We see our role as the coordinator of the processes of verification of tender documentation: we will make sure that all the deadlines imposed by the contracting authority are kept and also verify the technical translation and review of the documentation to be made by your technical consultant.
We believe that technical specifications should be reviewed and translated by your technical adviser. Technical documentation involves specific, professional, technical vocabulary. As a precise translation of the tender documentation is a key to your success in the proceedings, we suggest that you use technical translators. We can review the translated technical parts of the tender documentation for their compliance with the legal part of the specification.
According to Polish law, a bidder is entitled to ask questions concerning the tender documentation. These questions may encompass any doubts or objections the bidder may have toward the documentation. The contracting authority is permitted to provide individual explanations or answers to questions posed by other possible bidders about the tender documentation. Such answers and explanations are also presented by the contracting authority on the tender website.
The contracting authority is obliged to provide the bidder with explanations or information if the request for clarification of the documentation is received by the contracting authority no later than 14 days before the deadline for submission of tenders.
Tender participation criteria
The checklist of tender participation criteria will be drafted by us and provided as soon as the tender documentation is reviewed. According to the Public Procurement Law, the tender participation criteria must be fair and equal to all potential bidders. They should also be appropriate to the scope and value of the subject matter of the procurement.
Within our assistance at this stage of the proceedings we will provide you with all guidelines, information and drafts of documents to validly prove your ability to take part in the proceedings as set forth by the contracting authority. You will obtain a necessary checklist in the form of tables, and we will monitor the process of gathering information and documents in order to meet the deadline.
Draft contract
The draft contract constitutes a part of the tender documentation. It is drafted by the contracting authority and is made available to bidders together with the contract notice and terms of reference for the procurement.
If the tender is won, the winning bidder must sign a contract with the same wording as provided in the tender documentation. Thus all comments or requests for potential revisions to the draft contract should be made during the first half of the period allowed for submitting offers, starting from publication of the contract notice. After that date, bidders may request amendments and ask questions, but the contracting authority is not obliged to answer those queries.
After having obtained and translated the draft contract, we will draft our comments to the contract in the form of a table for your information. Whenever we see the need to request amendments or ask questions of the contracting authority, we will indicate the provisions requiring amendment and draft a letter to the contracting authority. We will provide you with relevant explanations of the applicable regulations and the impact of the provisions given by the contracting authority on your rights and obligations in case of winning the tender.
Drafts of required documents and declarations
We will draft all necessary declarations and powers of attorney to be attached to the offer. We will make sure that the form of documents complies with the law and the expectations of the contracting authority. We will consider all answers and explanations of the contracting authority as well as potential amendments to the tender documentation. Whenever possible, we will provide you with documents in both language versions.
Should you decide to use a consortium structure for your bidding, we will draft a consortium agreement and the power of attorney for the consortium leader.
We recommend considering granting a power of attorney to a person readily available in Poland during the proceedings. When preparing the offer, we will give that person clear and precise instructions concerning the form of the offer: which documents require notarisation, which must be originals, which may be certified copies. Please note that it is mandatory to sign tender documents with a qualified electronic signature compliant with the eIDAS Regulation ((EU) 910/2014)).
After providing you with the English translation of the attachments to the offer and the tables of experience and personnel, we will expect you to complete the tables according to the contracting authority’s instructions. We will assist you and be open to consult any table entry if needed. Afterwards, we will check the completed tables for their compliance with the tender documentation and procure the Polish translation of the tables.
We will also expect you to complete the remuneration details in the offer form. We will provide you with the English version of the offer form and make sure that all the details of your offer are properly repeated in the Polish version of the offer, which will be binding for the contracting authority.
We will check the final version of the offer together with all attachments for completeness and correctness (form and content of documents).
We can also assist you with submitting the offer, if required. As a rule, all public procurement proceedings in Poland are conducted electronically, so the request to take part in the proceedings, the offer and the accompanying documents must be signed with a qualified electronic signature compliant with the eIDAS Regulation.
Administrative assistance
We can become your service agent for the time of the tender proceedings, starting from the date of the contract notice. In such case, all correspondence from the contracting authority addressed to you will be sent to our office. This will help us to react to each situation in the tender quickly.
Please note that all correspondence from the contracting authority will be drafted in Polish. We will immediately forward letters from the contracting authority to you together with an English translation of the correspondence. We will also provide you with all necessary guidelines concerning the contracting authority’s decisions and requests.
Actions and decisions taken by the contracting authority during the course of a proceeding for award of a public contract can be challenged by an appeal submitted to the National Appeal Chamber within 10 days from the act or omission. In any case where we believe an appeal should be submitted, we will provide you with information on the argumentation and the deadline to make a decision on submitting the appeal.
If an appeal is lodged, the contracting authority is not permitted to conclude a contract until the National Appeal Chamber renders its ruling. The parties and other participants in the appeal procedure may lodge a complaint with the regional court against the National Appeal Chamber’s ruling.
We will always await your instructions and follow your decision concerning filing an appeal and formulating the objections to be included in the appeal.
Process of preparing the offer
From our experience, we believe that as time is of the essence in any procurement procedure, and the date of issuance of certain documents is crucial, preparation of the offer and the required translations should be systematic and parallel. Any time a required document is ready, a translation should be procured simultaneously—especially as some documents may need to be translated twice: from Japanese to English and then from English to Polish. We will take care of all required translations early enough to ensure that the offer is ready on time.
Bidding structure issues
Please take into consideration that it is vital to establish the bidding structure at the earliest stage of the tender. The rule under the Public Procurement Law is that a public contact can be awarded only to the bidder who won the tender, that is, the bidder who submitted the best offer. Despite the complicated formal requirements, the open tender procedure may be the simplest procedure, because it only involves submission of offers by the deadline indicated by the contracting authority and selection of the best offer.
From this perspective, please be aware that if you consider establishing a new subsidiary for the purpose of performing the contract, this company should be involved in the procedure from the beginning. In light of the legal restrictions, it is not possible to change the bidding structure after the offer is submitted, that is, to transfer the rights and obligations of the bidder to another entity.
The same rule applies to consortia. Whenever companies form a consortium, they must remain within the consortium for the entire duration of contract performance.
Considering all the formalities that must be met before submitting offers, and the documents that need to be obtained, it is highly advisable that the bidding structure be established immediately after publication of the contract notice.
If required, we can offer you the purchase of one of our existing limited-liability companies registered in Poland (a shelf company). Such a transaction can be effected within three days.
Nevertheless, we suggest that you commence your intra-company decision process in order to determine your bidding structure and your policy in case the tender is restricted as regards non-EU companies or due to formalities to be fulfilled by the bidder, or, finally, due to the tax implications, such as tax filing obligations, corporate income tax, or VAT implications.
Note that pursuant to EU and Polish VAT laws, services directly related to real estate located in Poland would most likely be taxable in Poland. In particular, services consisting of engineering and construction, development of industrial infrastructure, supervision or coordination of construction works and the like, would trigger VAT in Poland, typically at the rate of 23%.