Abstract

Procedural provisions make up over one half of the Public Procurement Law Some of them are new, introduced by the act of 11 September 2019. Among them, of special interest are: the procedure for carrying out an analysis of needs and requirements, a new procedure for the award of contracts below EU thresholds, and the procedure for taking evidence from testimony of a witness. The former one due to the fact that it is a basic instrument for attaining efficiency of the procurement system, the latter – because despite the fact that it has been functioning to a limited degree for the past twenty-odd years, it concerns the most infrequently used means of evidence in disputes between the awarding entity and contractors, unlike in the civil procedure, where in principle no serious business case is processed without testimony of witnesses.

The analysis of needs and requirements is a procedure defined by its objective – i.e. striving at the efficiency of spending. The procedural provisions as such boil down to two words: “market research”. The awarding entity is obliged to carry it out before making specifications, but the method of its implementation has been left to its own discretion.

The basic one is the procedure of awarding public contracts the value of which does not exceed EU thresholds. It has replaced the hitherto procedures with call for tenders (open tender, restricted negotiations with call for tenders and competitive dialogue). It is not a uniform procedure, but from the structural and practical viewpoints rather three different procedures described with a common name.

Taking evidence from witness testimony before the National Appeal Board is the procedure of taking evidence allowed without formal restrictions and exceedingly vague as regards all of its aspects. Particularly clearly visible is that the National Appeal Board has no authority to summon witnesses and that the consequences of non-appearance have not been specified. Unresolved has been also the risk of procrastinated proceedings due to skilful manipulation by the parties to or participants in the proceedings of the provisions on filing evidentiary applications for the hearing of witnesses.