#NewPPL: Changes to general provisions

Changes to general provisions. Subject-matter of regulation.

Scope: The New Public Procurement Law (“PPL”) has structured and gathered the scope of the act in § 1. It states that the New Public Procurement Law will address the issues of EU threshold and above-EU threshold public contracts and below-EU threshold contracts. The Law sets out the rules and procedures for awarding public contracts, remedies, public procurement audit and the competent authorities in matters provided for in the Law.

Applicability: Changes with regard to applicability are only made for easier reference. The New Public Procurement Law has grouped entities obliged to apply the Law into public contracting authorities, utilities contracting authorities and subsidised contracting authorities. This does not result in a modification of the applicability of the public procurement regime.

The one exception is the new approach to exclusions from the scope of utilities activities. Utilities contracting authorities have been identified not only according to their capacity, but according to their object, i.e. being engaged in activities across water management, energy, transport and postal service sectors, collectively referred to as utilities.

Thresholds: The New Public Procurement Law puts in place a simplified procedure for below EU threshold contracts and certain measures to simplify other procedures and the design contest and lays down the principles for public procurement efficiency.

A national threshold known as the de minimis threshold has been set for applicability of the appropriate rules. This is the amount below which contracting authorities are exempted from compliance with the Law. Currently, this amount is set at EUR 30,000. The New Public Procurement Law does not generally change the applicable threshold as such but has changed its currency to PLN 130,000, which roughly corresponds to the current euro amount. The purpose of denominating the threshold value in PLN is to spare contracting authorities the need to convert sums estimated and denominated in Polish zlotys into euros to check if the provisions of the Law apply or not.

The New Public Procurement Law provides for raising the Law applicability thresholds for defence and security contracts to match the EU thresholds. Thus, the EU thresholds will become applicable to defence and security works contracts (under the existing regime, the EU thresholds have only applied to deliveries and services).

Those regulations in the New Public Procurement Law which provide for exemptions from the application of the Law with respect to specific public contract types will transpose to the Polish national law the exemptions laid down in the EU law, including the Classical Directive and the Utilities Directive and the Defence Directive, for EU threshold and above-EU threshold contracts.

The Law will apply to classical contract award procedures where the value (exclusive of the value added tax) of a single purchase is below the Polish zloty amount of PLN 130,000 but no less than PLN 50,000, only to the extent concerning the publication of contract notices and the provision of reports on contracts awarded. This regulation will only apply to those contracts awarded by public contracting authorities which are not exempt from the application of the Law and those where the contract unit value is above the relevant threshold. Publication of notices in the Public Procurement Bulletin (BZP) will improve accessibility of public contract information for contractors.

Definitions: The New Public Procurement Law has expanded the definitions section of the current Public Procurement Law to include new statutory definitions and has amended, clarified and supplemented the existing definitions. The following new concepts have been defined: contract documents; innovation; supply chain; written form; contractor-related evidence and substance-related evidence; contract award; terms of reference; classical contracts; social services and other special services contracts; and defence and security contracts.

Furthermore, the definitions of the following terms scattered throughout the Public Procurement Law text have been inserted in the definitions section: Defence Directive; Classical Directive; Utilities Directive; design contest; and selection criteria.

Timelines: The New Public Procurement Law has upheld the civil-law nature of the contract award procedures, which means that timelines for the purposes of the contract award procedure and the public procurement contract will be calculated by reference to the Polish Civil Code.

Exemptions: just as under the current Law, exemptions from the application of the Law with respect to specific public contract types will be governed by provisions which transpose to the Polish national law the exemptions laid down in the EU law.

However, the New Public Procurement Law restricts the list of exemptions from the application of the Law. The list no longer includes the exemption from the application of the Law with respect to public grants and the exemption of de minimis contracts up to EUR 30,000. Under the bill, those contracts will be exempted from the regime of the Act pursuant to the provisions setting the Law applicability thresholds.