Author: kancelaria

• On 23^rdJune 2022 Regulation 2022/1031 on International Procurement Instrument (IPI) – reciprocity in the treatment of EU contractors participating in tenders from non-EU countries was adopted.
• The Regulation 2022/1031 enables the Commission to undertake investigation into a third-country which uses practices against EU contractors restricting their access to the public procurement or concession markets.
• If such practices are being used, the Commission can impose IPI measures to restrict the access of third-country contractors to EU public procurements.
• This means that the contractors from such third-country may be even excluded from public procurements conducted by EU countries or less points may be awarded to a bid submitted by such contractors.
• The IPI measure will affect as well the possibility to subcontract the part of public procurement to entities from a third-country on which such measure is imposed.
• IPI measure will apply only to the procedures initiated after the entry into force of such measure.
• IPI may apply not only to contractors from third-countries but also to goods and services.
• The Commission each time will define the type and the minimum value of procurements that will be covered by the IPI measure. That threshold cannot be less than EUR 15.000.000 (for works) and EUR 5.000.000 (for supplies and services).
• The exceptions to the application of IPI measure to procurements are very limited.
• As a rule, IPI measure should expire after 5 years.
• The Regulation 2022/1031 will enter into force on 29^thAugust 2022.

If you have any further questions regarding IPI, we remain at your disposal.

An article written by Katarzyna Skumiał, Legal Counsel of Hoogells Law Firm, has been published in the latest issue of Prawo Budowlane, a construction law quarterly. The article discusses the issues of construction project staging.

Read the new issue of the Prawo Budowlane quarterly and the publication of Ms Skumiał already in the New Year.

State Procurement Policy

The purpose of the enactment of the new Public Procurement Law is to facilitate the implementation of the State Procurement Policy as the existing Law has not provided such regulations. Provisions addressing the State Procurement Policy are contained in Chapter 3 of the new Public Procurement Law.

The State Procurement Policy is to define the public procurement priorities for the Republic of Poland and set the direction for contracting authorities in their contracting activities. The focus of the legislation is to make procurement oriented to innovative and sustainable products and services which are to be supplied to public institutions. This mainly involves the implementation of a procurement management framework for public contracts that would embrace the aspects of standardisation; cost calculation throughout the product life cycle; social responsibility of business; and promotion of procurement best practices and tools.

The State Procurement Policy will be developed every 4 years by the Minister competent for economy, who will then coordinate its implementation. Intended to provide a roadmap for the government administration, the Procurement Policy will also include the objectives and directions for growth.

The implementation of the State Procurement Policy has led to an additional requirement being imposed on those contracting authorities which are central government administration bodies. Pursuant to Article 22 of the new Public Procurement Law, those entities are required to create a management strategy for individual procurement categories aligned with the State Procurement Policy. The strategy will identify key contracts instrumental to delivering on the State Procurement Policy.

Contracting authorities will also be obliged to prepare a plan of contract award procedures intended to be conducted in the financial year. The above obligation was one of the obligations imposed on contracting authorities under the existing Public Procurement Law and has been transferred to the new Public Procurement Law. However, the current regulations provide for the contract award procedure plan to be published on a contracting authority’s website only and the amendment requires that such plans be also published in the Public Procurement Bulletin (BZP).

As a result, the above changes do not apply directly to contractors although they may have informative value for contractors; by keeping track of procurement strategies contractors will get a better understanding of the market for upcoming contracts and prepare for bidding.

The legislature has recognised the need for putting a structure to the entire set of legislation governing the collection of materials to be used as evidence in court, hence the insertion in the amended Polish Code of Civil Procedure (“CCP”) of the Chapter “Structure of Proceedings” identifying a stage of preliminary hearing. These changes are intended to facilitate faster hearing of cases by the court.

Below is a brief overview of the changes brought about by the inclusion of a separate preliminary hearing. The amendments came into force on 7 November 2019.

Preliminary hearing

Under the previous legal regime, a hearing with the parties held before a trial was optional and incidental. Following the entry into force of the amendment to the Polish Code of Civil Procedure, this is generally an obligatory part and should take place within two months of filing of an answer or other preliminary pleading.

The fundamental purpose of the preliminary hearing is to make an attempt at resolving the dispute without the need to hold any further hearings, especially the trial, and for the court to obtain key information in order to examine and resolve the matter as early as possible in the proceedings, identify the issue in dispute and obtain clarity on the claims and demands of the parties so that the duration of the whole litigation process can be shortened.

Importantly, the parties are required to submit all evidence and facts already at the stage of the preliminary hearing, failing which such evidence will be ignored further in the proceedings.

Moreover, the amendment to the Polish Code of Civil Procedure provides for an obligation to advise the parties to the proceedings of the probable outcome in the light of the allegations and evidence submitted so far. Under the previous legal regime, informing of the anticipated outcome by a judge could result in an action up to disqualification of that judge. The above has now become a judge’s right and a judge may or may not exercise that right.

Trial Plan

Where the fundamental purpose of the preliminary hearing is not achieved, i.e. an amicable resolution fails or proves not to be an option, a Trial Plan is prepared. As a mandatory minimum, the Trial Plan must contain resolutions regarding the parties’ motions to admit evidence, thus replacing an order admitting evidence. In addition, the Trial Plan may include items such as hearing dates, resolutions regarding other issues or the date of trial closing or delivery of the judgement. The Trial Plan is intended to concentrate the material to be used in evidence. All issues to be included in the Trial Plan may be submitted by way of a motion by the parties or at the court’s initiative.

Evidence by witnesses

An update to the provisions governing submitting witness testimonies in evidence has been made to impose certain time restrictions. If a party files a motion for a witness summons already after the Trial Plan has been approved, and consequently, after the preliminary hearing has been closed, the party is obliged to pay a fixed fee of PLN 100 per person summoned (Article 34a.1 of the Legal Costs in Civil Cases Act). The above is intended to expedite and streamline the whole proceedings.

An article entitled “Umowa o zamówienie publiczne” [Public Procurement Contract] has been published in a special expert issue of Monitor Zamówień Publicznych, a public procurement trade journal. The article was written by Anna Dynek and Anna Oleksiewicz.

Inside the issue selected experts in public procurement law share their reviews of the new Public Procurement Law. Read the full article in Monitor Zamówień Publicznych.

Effective yesterday, the Projekt Warszawa men’s volleyball club team was renamed to Verva Warszawa Orlen Paliwa. This is a momentous event in the world of volleyball and we are a part of it as a law firm.

We partnered with our Client, Projekt Warszawa Sp. z o.o., the manager of the Warsaw-based men’s volleyball club team, in efforts to sign a Main Sponsorship Agreement. At earlier stages, we provided legal support to our Client in all activities to set the team up for starting playing once the rights to play in PlusLiga, the Polish Men’s Volleyball League, had been secured.

Our lawyers, Anna Oleksiewicz and Paulina Jakubowska, directed the work. It was a challenge and an immensely valuable experience to our team that closed to the Client’s satisfaction. For more about this event refer to the Polska Times website here.

An article on the Hoogells Law Firm’s interior design has been published in Marketing Prawniczy, a legal marketing magazine.

The Magazyn Prawniczy editorial board appreciated the original and creative take on office design shown in our fitout project. Our commitment to make every client comfortable and confident that they are being taken care of by professionals was also commended.

We greatly appreciate this publication.

You can order your copy of the magazine on the Marketing Prawniczy website here.

Our lawyers Anna Dynek and Łukasz Kotarba attended the 9th Railway Congress on 13 November 2019.

This was a prominent event bringing together key representatives of the railway market in Poland. It was also an opportunity to listen to lectures given by experts and reap new knowledge that we will certainly put to practice.

Coming into force on 7 November 2019, the amendment to the Polish Code of Civil Procedure implements major changes to the current legal framework with respect to the payment order procedure, which is commonly and readily used by enterprises to seek fast and efficient recovery of claims. Although the requirements associated with securing a payment order in the payment order procedure are among the most stringent requirements in use, this procedure offers quick injunction ahead of the final resolution and does not require high legal costs.

Below is an overview of the key changes to the payment order procedure that apply to procedures initiated after 7 November 2019.

Grounds for issuing a payment order 

As of 7 November 2019, a payment order will be issued if the facts providing grounds for the claim sought will be evidenced by a public document; bill accepted by the debtor; notice of payment to the debtor and the debtor’s written acknowledgement of debt; and a promissory note or bill or exchange or a cheque.

In the light of the new legislation, it will no longer be possible to rely on a request for payment accepted by the debtor and returned by a bank and not paid because of no sufficient funds in the bank account. A payment order will not be available against a debtor under a warrant or reversal.

The court will no longer issue a payment order where a bank seeks recovery of claims by relying on an extract from bank books signed by individuals authorised to make binding declarations in respect of the bank’s property rights and obligations and bearing the stamp of the bank and a proof of delivery of a written notice of payment to the debtor.

Unknown whereabouts of the defendant

The provisions which establish the prerequisites for refusal to issue or set aside ex officio a payment order have been partially repealed. Following the amendment, circumstances such as unknown whereabouts of the defendant and inability to serve a certified copy of a payment order on the defendant within the country will not qualify as prerequisites for the Court to set aside ex officio an issued payment order.

Senior Judicial Clerks

Another change is empowering Senior Judicial Clerks to proceed in a payment order procedure. Previously, this privilege rested exclusively with judges. The above measures are aimed at further expediting the procedure and speeding up the processing of cases resolved in payment order procedures.

An article written by Łukasz Kotarba, Head of Infrastructure and Contentious Construction at Hoogells Law Firm, has been published in the latest issue of Prawo Budowlane, a construction law quarterly. The article concerns withdrawal from a contract due to failure to submit an unconditional guarantee of payment.

Read the latest issue of Prawo Budowlane here and take a look at the publication by Mr Kotarba.