Abstract

The article discuses preliminary market consultations in Polish public procurement proceedings in light of the new Public Procurement Law of 2019. This instrument has already been regulated, and has seen many judicial decisions based on both the Polish Public Procurement Law and Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC. Those decisions, including judgements of the National Appeals Chamber, based on the principles of EU law and decisions made by the Court of Justice of the European Union, underline the importance of the opportunity for contracting authorities to conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements. As long as the participation of economic operators does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency, market consultations are viewed favourably as a method of introducing professional know-how and experience to the procurement process. This effect is deemed important, especially in light of the efficiency doctrine underlined in the new Public Procurement Law of 2019, focusing not only on baseline value-for-money calculations, but also social, socio-economic, environmental aspects, innovation, flexibility and whole-life costs.

The article discusses the importance of utilising instruments that ensure transparency and competition, while securing the business against the risk of revealing information that it uses to gain a competitive advantage, as well as rules protecting the business from being needlessly eliminated from consideration during the tender phase because it aided the contracting authority in preliminary consultations. These safeguards are critical, because without them business participation would become increasingly uncommon, as the risks for the business – including making trade secrets public and being eliminated from contention in the procedure – would be deemed higher than any benefit the business could gain from participating in the procedure in the preparation phase.