Abstract

The new draft of the Public Procurement Law contains a number of long-awaited and much needed solutions. These include, for instance, provisions regulating conditions for exclusion from procedures, the legible submission of documents demanded from a contractor, the obligation to prepare a report on the contract execution, the appointment of one court for the purposes of public procurement, and the expansion of the scope of a cassation appeal to the Supreme Court. The draft also contains solutions that raise some doubts, both in terms of the practical aspects and the structure of a public tender, such as an ineffective obligation “to meet” contractors upon closing the tender selection procedure, but before entering into a contract. It also introduces an obligation to organise a competition for an architect, which is questionable in terms of its compliance with EU law. Still, the most serious defects in this draft must be identified in leaving the possibility to select a bid despite the expiry of the time limit for which the bid is valid (namely when there is no binding bid), and in unintentionally releasing the Contracting Authority from the obligation to justify its decision to reject bids. Another defect can be found in the way that the National Chamber of Appeals remains organisationally subordinate to the execution authority (the minister in charge of economic matters), which may result in the CJEU adjudicating that the Chamber is not a court within the meaning of the CJEU, and the way that the regulatory authority, i.e. the president of the Public Procurement Office, remains subordinate to the same minister (and so not as independent as it should be).