Abstract

The Polish law on public finances provides for a list of situations related to spending public funds, including awarding public procurement contracts, in which the liability for breaching public finance discipline applies. The same applies to contracts awarded during the Covid-19 epidemic, although it should be noted that a number of special provisions waive the application of public procurement law during the epidemic.

The Public Procurement Law introduces a general obligation that public procurement contracts must be made in writing or will be considered invalid. However, the Civil Code also states that an electronic form is equivalent to written form, and the electronic form is provided for in the Act on Counteracting the Covid-19 Epidemic.

Entering into a public procurement contract that is not in the form specified in the public procurement regulations, namely anything other than in writing or an electronic form, constitutes a violation of the public finance discipline specified in Article 17 paragraph 2 point 1) of the Act on Liability for a Breach of Public Finance Discipline, unless the application of the public procurement regulations is excluded in a certain case due to the epidemic. A failure to observe the form required by law invalidates the contract and, as a result, does not lead to the award of a public contract. Significantly, however, the contract is considered as having been concluded, even though it is invalid.

Liability for a breach of public finance discipline is incurred by the person who concluded the contract, but may also be borne by the head of the entity, in view of failures in management control that allowed the contract to be concluded in an improper form.