Commentary of dr Paweł Nowicki regarding competitiveness in public procurement procedures

The Gazeta Prawna (issue of April 15, 2020) published an article by Sławomir Wikariak regarding competitiveness in public procurement proceedings, in which Dr. Paweł Nowicki, head of the Public Procurement Practice and the Practice of European Law, State Aid and EU Funds in our law firm, expressed his opinion on the matter.

The article is available on the website:

https://forsal.pl/artykuly/1469262,konkurencyjnosc-w-wielu-przetargach-wystarczylby-e-mail.html


Competitiveness not only on paper. An email would suffice in many tenderings.

Although some of the tenders moved online due to COVID-19, many contracting authorities still require offers on paper. Even when a simple e-mail would be enough.

Procurements with a value not exceeding 30,000 euros are awarded without public procurement procedures”. However, this does not mean that one can completely give up competitiveness. Especially when it comes to contracts co-financed with European Funds. Therefore, not only public administration, but also private entrepreneurs whose projects have been co-financed from these funds, announce their procurements in the Competitiveness Base run by the Ministry of Development. Unfortunately, despite calls to avoid physical contact as part of the fight against COVID-19, in the vast majority of these proceedings bids are still required on paper.

– It is incomprehensible, because in contrast to formal tenderings, in which it is necessary to have at least a qualified electronic signature, there are no requirements here. Entrepreneurs could even send offers by simple e-mail. By requiring offers on paper, awarding entities not only make life difficult for themselves and companies, but also unnecessarily pose a threat to themselves and others – says Artur Wawryło, an expert running the Public Procurement Law Firm.

Unnecessary Risk

Simple example – purchase of forklifts. Only two forms of submission of offers were allowed – by post, to the address of the contracting authority, and personally, at its headquarters. The decisive date is the date of arrival of the offers, not their sending. Therefore, some contractors may want to provide their own offers to ensure that they have arrived on time. Sending them by letter also poses a threat – in fact, nobody really knows how long the quarantine for the mail should take so that the viruses on it die. What’s more, some companies may even resign from such proceedings.

– Let’s not forget that the main goal of the Competitiveness Base is – as its name suggests – to ensure fair competition and increase competitiveness as part of spending EU funds. During a pandemic, when there are so many restrictions of the normal functioning of both contracting authorities and contractors, requesting written offers may actually reduce the number of bids submitted. I would, therefore, recommend requesting electronic offers or at least providing for such an alternative – suggests Dr. Paweł Nowicki, lecturer at the Nicolaus Copernicus University in Toruń and of counsel at the Wierzbowski and Partners Legal Advisors and Advocates.

– Examples of such proceedings can already be found in the database, although it is not a commonly used solution. However, there are contracting authorities who allow, for example, submitting an offer in electronic form via e-mail or ePUAP mailbox address. The contractor submits an offer, which should be encrypted with the password generated by him, which is sent together with the offer – he adds.

Public Procurement Office recommendations

The aversion to the Internet in the case of the cheapest procurements is even more incomprehensible that at the same time one can notice an increasing interest in the electronization of public procurement, the value of which exceeds the said 30 thousand euro. And with them the procedure is more complicated – above all, the use of a qualified electronic signature is required. Despite this, some of the contracting authorities go online with tenders over 30,000 Euro, and below the so-called EU thresholds.

It is recommended by the Public Procurement Office.

“In the current epidemic emergency situation, the Public Procurement Office encourages contracting authorities to communicate with contractors via electronic means of communication also in public procurement procedures with a value below the EU thresholds. The PPO recommends that electronic communications cover all correspondence occurring in the proceedings, including the submission of offers, requests to participate, declarations and documents” – such recommendations were published by the PPO on March 20, 2020.

It stated that electronic communication can also be allowed in previously announced tenderings by changing the announcement and Specification of Essential Terms of the Contract. However, in procedures below the EU thresholds, the contracting authority must also accept written offers.

The institutions managing European Funds have not issued similar recommendations so far. Some, however, already encourage to contact them via the internet. Such a position paper was published, for example, by the Managing Authority of the Regional Operational Programme for Podkarpackie Voivodeship 2014–2020.