On 12 June 2018, Warsaw will host a conference “Competition law and public procurement – two sides of the same coin” organised by the Public Procurement Law Association.
The event will offer a unique opportunity to consider the issue of distortion of competition in tender procedures from the perspective of both these areas of law.
The participants will discuss such issues as the distortion of competition by contracting authorities and contractors, cases of abuse of dominant positions in the public procurement market, and the newest case law of the Court of Justice of the European Union regarding the self-cleaning mechanism. Panel discussions will reflect on how to tackle anti-competitive practices in the course of tender procedures and discuss methods of counteracting the abuse of superior bargaining position by contracting authorities.
The meeting will bring together representatives from public institutions as well as experts and practitioners in the field of public procurement law and competition law. The speakers will include specialists from Poland and abroad, among others, Dr Albert Sánchez Graells (University of Bristol, United Kingdom), Dr Deividas Soleveicik (a partner with Cobalt law firm, Lithuania), Dr Anna Blume Huttenlauch and Dr Roland Stein (partners with Blomstein law firm, Germany), as well as Ms Irma Urmonaitė (Head of the Anti-competitive Agreements Investigation Division, the Competition Council of the Republic of Lithuania). Simultaneous translation will be provided by the organiser.
The event will take place at the DAGO Centrum Conference Centre (Rondo ONZ 1 in Warsaw), at 9:00 am. The full agenda is available here.
Admission to the conference is free, however, places are limited due to capacity constraints of the venue. Thus, registration is subject to confirmation by the organiser.
The Public Procurement Law Association has presented the results of a questionnaire concerning measures of legal protection enjoyed by contractors in public procurement proceedings. Most of the contractors represented were small and medium-sized enterprises (SMEs); however responses to the questionnaires were also received from large enterprises. Over half of the respondents indicated that the fee for an appeal to the National Appeals Chamber is appropriate, however, about 40% found it to be too high. As it turns out, this has a direct impact on further actions, as for 40% of respondents the amount of the fee is an obstacle to their filing an appeal. The problem is even more fundamental in the case of appeals against rulings handed down by the National Appeals Chamber filed with the court – for 66% of respondents the amount of the fee prevented them (at least once) from taking advantage of the above remedy. In addition, 66% of contractors also found the fee to be too high. 75% of contractors have not filed a complaint against a ruling of the National Appeals Chamber. As many as 20% of contractors received an advantageous court ruling and yet they were still not awarded the contract. Despite this, none of them have taken any steps in order to obtain compensation from the awarding authority.
The contractors presented very important issues concerning the present appeal system which significantly prevents them from pursuing their rights. The legislator may benefit from the survey’s key conclusions in connection with the pending works on the new public procurement law. The survey shows that for the majority of respondents, including in particular the MSEs, access to the appeal measures is hindered by overly high costs. The question of whether fixed thresholds are really necessary continues to be valid.
In addition, the contractors encountered problems with the application of court rulings by the awarding authorities. The report underlines key problems faced by contractors in the current legal environment and provokes a discussion before the planned legal changes concerning measures of legal protection are enacted.
A file presenting a detailed analysis of the results of the questionnaire is available for download below.
We encourage you to take part in our survey (in Polish) on the costs of appealing to the National Appeals Chamber (KIO) and filing complaints against KIO rulings to regional courts in connection with pending procedures for the award of public contracts.
With this survey we hope to see if the currently applicable costs of these remedies are not perhaps excessively prohibitive. We would also like to determine what the market players regard as the most reasonable level of these costs.
The questionnaire and analysis of the responses to it form part of an ongoing project looking into the broader issue of legal protection currently available in the public procurements system. As part of this project, our Association produced a report titled “Functioning of Legal Protection Measures in EU Countries. Key Conclusions” which is available on our website. The report also details conclusions relevant to the situation in Poland.
The review of registration fees charged in appeal procedures before the KIO and when complaints are filed with regional courts against KIO rulings will add to the conclusions summarized in the above report and will be forwarded to the Ministry for Development and the Public Procurement Office, along with proposals for suitable legislative change.
Our project is important considering that work is now underway to draft a new public procurement bill. We hope that the framers of this bill will take into account our proposals regarding legal protection remedies and the fees and charges that go with them, given just how critical these are in the public procurement system.
Please return the completed questionnaire to us by 15 January 2018. The questionnaire is short and you will need just a few minutes to fill it in.
A presentation on the review system in Poland and other EU member states delivered in Warsaw by Dr. Aleksandra Sołtysińska during a debate held by the SPZP Association on 28 September 2017 is available here. The debate concerned the functioning of legal protection measures in public procurement projects.
We are proud to invite you to acquaint yourselves with our report on legal protection measures in EU countries.
The study includes a proposal to extend the time limits for lodging a complaint, reduce the fee for bringing legal protection measures and introduce an obligation to provide parties and participants with pleadings before the hearing.
The authors of the report (Anna Szymańska, Wojciech Hartung PhD and Piotr Bogdanowicz PhD) also recommend that a single court be set up to hear appeals against decisions of the National Chamber of Appeal.