Anti-Crisis Shield - key changes related to the area of public procurement
Today Poland’s parliament works on the governmental project of amendments to the Act on special arrangements for preventing, counter-acting and combating COVID-19 aiming to introduce the solutions of the Anti-crisis Shield. What solutions it foresees for the area of public procurement?
Additional limitations in the application of public procurement law provisions
- Exemption of Bank Gospodarstwa Krajowego (BGK) from the obligation to apply public procurement law when implementing financial instruments aimed at eliminating the effects of the COVID 19 pandemics on the entrepreneurs’ activity.
- Public procurement contracts for services or supplies awarded by Zakład Ubezpieczeń Społecznych (ZUS – National Insurance Institute) in connection with the realization of the tasks related to the determination of the right or payment of the demurrage are exempt from the application of public procurement law.
Regulations for the amendment of public procurement contracts and exemption from contractual penalties provisions in the event of non-performance or improper performance of the contract
The project foresees changes in the Public Procurement Law introducing mutual obligation to communicate about the impact of circumstances relating to the occurrence of COVID-19 on the proper performance of the contract, the possibility of amending the contract, non-recovery of receivables, including contractual penalties and exemption from penalties specified in the Act on the violation of the public finance discipline.
Two principal solutions:
Possibility of amending the content of the contract concluded by the parties to ensure its realization and adaptation of the contract to the current changes of social and economic situation because of the COVID-19 outbreak;
Exemption of contracting authorities’ liability, including contracting entities awarding utilities contracts, from the breach of public finance discipline when resigning from the determination and recovery of receivables from the contractors (ex. contractual penalties) or amending contractual provisions in accordance with the rules defined in the presented project.
What is the procedure for amending the contract?
The Parties of the contract shall promptly inform each other about the impact of the circumstances related to the occurrence of COVID-19 on the proper performance of the contract, if such impact occurred or may occur.
The Parties of the contract confirm this impact by attaching statements or documents to the information (an open catalogue of documents which confirm the impact of the specified circumstances on the proper performance of the contract is foreseen). Each Party of the contract may request additional statements or documents confirming the impact of the circumstances related to the occurrence of COVID-19 on the proper performance of the contract.
The Party of the contract which received the information on the basis of the presented statements or document shall, within 14 days from the date of receipt, communicate to the other party its position on the impact of the specified circumstances on the proper performance of the contract along with a justification.
The contracting authority, after establishing that the circumstances related to the occurrence of COVID-19 may affect or have an impact on the proper performance of the contract, may, in agreement with the contractor, amend the contract’s provisions. The catalogue of the amendments is open. The project foresees as an example: (i) changes in the performance date of the contract or part thereof, or temporary suspension of the performance of the contract or part thereof, (ii) changes in the manner of performance of deliveries, services or construction works, (iii) changes of the scope of contractor’s performance and corresponding change of contractor’s remuneration, provided that the increase in the contractor’s remuneration caused by each amendment shall not exceed 50% of the original value of the contract.
Where a contract includes more favorable conditions for contract’s amendments, such conditions apply, save that the circumstances related to the occurrence of COVID-19 shall not constitute an independent basis to exercise the contractual right of withdrawal from the contract.
The communicated position concerning the impact of the indicated circumstances on the contract’s performance shall also include the impact of the circumstances related to the occurrence of COVID-19 on the proper performance of the contract and the impact of the amendments of the contract on the grounds of determining and recovery of penalties or compensation or their value. The contracting authority considering that there are grounds for establishing the contractor’s lack of liability shall resign to determine and recover the foreseen contractual penalties or compensation. In a contrary situation, the contracting authority shall consider the possibility of reducing the value of the contractual penalties or compensation, in accordance with the level of impact of the circumstances related to the occurrence of COVID-19 on the proper performance of the contract, taking as well into consideration the amendments made to the contract.
The presented solutions apply as well to the contracts with subcontractors and further subcontractors.
Deadlines in the area of public procurement
The stay and suspension of deadlines in the project does not apply to controls and proceedings indicated appropriately in Title V chapter 3 section 3 (Ex-ante control of contracts co-financed from the EU funds) and Title VI chapter 2 (Legal protection measures – Appeal) of the act dated 29 January 2004 Public procurement law.
In this area, the President of the Public Procurement Office or the President of National Appeal Chamber, through an adequate ordinance, may define the detailed conditions for the organization of work of the National Appeal Chamber and the security measures taken.