The impact of EU public procurement law on Polish regulations and practice was the main topic of the international conference “20 years of Poland in the EU – challenges and opportunities for the Polish public procurement system” which was held on 26 September in Warsaw. The event, organised by the Public Procurement Law Association and the Chair of European Law at the Faculty of Law and Administration at the University of Warsaw, brought together international and Polish experts: academics, public procurement practitioners and representatives of state institutions.

The conference was opened by Aldona Kowalczyk, President of the Public Procurement Law Association, and Piotr Bogdanowicz, member of the board of the Public Procurement Law Association, while Agnieszka Olszewska, President of the Public Procurement Office, gave a speech on the 20th anniversary of Poland's accession to the European Union. This was followed by three thematic sessions during which national and foreign experts talked about, among other things, demonstrating fulfilment of the experience requirement, grounds for exclusion, the functioning of consortia and the use of third parties, as well as amendments to public procurement contracts.

During the event, judgments of the Court of Justice of the European Union (“CJEU”), handed down as a result of questions referred by the National Appeal Chamber for preliminary rulings, were repeatedly cited by both Polish and foreign speakers. Worth noting is that Poland has also contributed to the development of EU case law on public procurement.

A lively discussion ensued on topics related to multi-entity participation (consortia, use of third party resources) in procedures conducted under the Public Procurement Law regime and the possibility of changes being made in this respect, both during the tender procedure and after contract conclusion.

However, the CJEU judgments in the Bulgarian Obshtina Razgrad case led to a consideration of the extent to which it may be applicable in the Polish context due to the special form required in Poland for the conclusion of a public procurement contract, which under the Civil Code also extends to annexes to contracts.

The discussion on the German request for a preliminary ruling in the Fastned Deutschland and Tesla Germany case , which is still pending before the CJEU, demonstrates the importance of the issue of amending contracts excluded from the scope of application of the EU procurement directives.

We list below the speeches given during the conference:

• “The Esaprojekt judgment and its impact on practice in Poland and other EU countries” – Professor Tünde Tátrai, Corvinus University of Budapest, member of the International Research Study of Public Procurement
• “Demonstrating the fulfilment of conditions through the experience of special purpose vehicles” – Dr Wojciech Hartung, Counsel at Domański Zakrzewski Palinka Law Firm
• “Changes in the composition of a consortium” – Dr Jens Debievre, lawyer, member of the Brussels bar
• “Impact of improper performance of the contract on the subjective situation of individual consortium members” – Dr Łukasz Paweł Goniak, Counsel at JDP Drapała & Partners law firm
• “Change of a third party during the procedure” – Dr hab. Piotr Bogdanowicz, professor at the University of Warsaw, Counsel at Clifford Chance, Janicka, Krużewski, Stosio i wspólnicy law firm
• “Mandatory vs. optional exclusion grounds – comments in the context of the judgment in Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias” – Dr Nuno Cunha Rodrigues, professor at the Faculty of Law of the University of Lisbon, President of the Portuguese Competition Authority (AdC)
• “Analysis of selected grounds (early contract termination, misrepresentation, collusive bidding) and their application in the context of procedures that involve foreign contractors” – Mirella Lechna-Marchewka, LL.M., Managing Partner at Wardyński i Wspólnicy law firm
• “Difficulties related to the way exclusion periods are calculated” – Dr Anna Szymańska, Partner at Dentons law firm (Warsaw)
• “The most recent case law of the Court of Justice of the European Union (Obshtina Razgrad)” – Dr Deividas Soloveicik, associate professor at Vilnius University, Partner at COBALT Legal
• “Amendments to a contract not governed by directives – comments in the context of Fastned Deutschland and Tesla Germany” – Dr Wolfram Krohn, Partner at Dentons law firm (Berlin)
• “Analysis of selected grounds for amending a contract – difficulties in interpretation” – Dr Kalikst Nagel, Centralny Port Komunikacyjny sp. z o. o.

 Selected presentations and materials from the conference will be posted on the Public Procurement Law Association's website in the coming weeks.