Konfederacja Lewiatan and the Public Procurements Law Association invite you to the following debate:

PROBLEMS WITH PERFORMING A CONTRACT AND GROUNDS FOR EXCLUSION FROM PUBLIC TENDERING
to be held on 18 January 2022, 10:00 a.m. – 12:00 p.m.

The Public Procurements Act (PPA), in force since 1 January 2021, has introduced a number of changes, including in the matter that is so significant for the public procurements market, in the grounds for exclusion from procedures for the award of a public contract. One of the prerequisites that is most controversial in practice, inconsistently construed by case law, has been provided for in Art. 109 Sec. 1 point 7 of the PPA.

This provision was modified in comparison to the previously applicable version (which was also controversial). The new wording was not successful in dispelling previous doubts; instead, it also has generated new, previously unknown, risks.
One of the essential elements which deepens doubts is the method in which contractors should prepare their statements in the European Single Procurement Document (ESPD). This question has a broader scope than the prerequisite for exclusion under Art. 109 Sec. 1 point 7 of the PPA. In this regard, the decision-making practice and case law are inconsistent and the consequence of this legal uncertainty leads to: 1) the risks of breaching the principle of equal treatment of contractors in granting access to the public contracts market; and 2) the growing number of exclusions from the procedures for the award of a public contract in connection with the alleged misleading practices of the contracting authority.

This legal uncertainty does not serve the participants of the public procurements market, and the practice of referring to this provision in proceedings seems to increasingly depart from the purpose which the provision was to serve.

The topics raised for discussion during the meeting will include:

• The role of the ESPD in the proceedings – is it justified to state all of the facts concerning the improper performance of the previous contract “irrespective of the reasons for which they occurred” or to complete the ESPD “from the perspective of a specific prerequisite for exclusion”?
• Is a contractual penalty tantamount to compensation?
• Does a contractual penalty that is questioned by the contractor fulfill the condition for exclusion (“has led to compensation” vs “adjudication of compensation”)?
• The significance of the settlement reached by the contracting authority and the contractor to evaluate the prerequisite under Art. 109 Sec. 1 point 7 PPA.
• Does the current wording of Art. 109 Sec. 1 point 7 PPA encourage conciliatory settlement of disputes between the contracting authority and the contractor in the context of the performance of a public procurement contract?
• Enforcement of the rights under warranty and improper performance of a material contractual obligation.
• Conclusions de lege lata and de lege ferenda.

The meeting will be hosted by Katarzyna Kuźma and Wojciech Merkwa, members of the Public Procurements Law Association.
The following guests will take part in the debate:

• Hubert Nowak, President of the Public Procurements Office
• Mariusz Haładyj, President of the State Treasury Solicitor’s Office and member of the Public Procurements Council
• Przemysław Grosfeld, Deputy Director of the Ministry of Development and member of the Public Procurements Council
• Małgorzata Śledziewska, Deputy Director of the Purchases Department at PGE Polska Grupa Energetyczna S.A.
• A representative of the contractor Erbud S.A.

To find out more information and register, click here LINK.