Dariusz Piasta, Public procurement expert, Poland 17 June 2015 Intercontinental Hotel, Bucharest NEW EU PUBLIC PROCUREMENT DIRECTIVES – IMPLEMENTATION IN POLAND – STATE OF PLAY Better legal protection for EU financial interests in Romanian public procurement

Polish Public procurement Legal Framework  The Public Procurement Law (2004) based on EU directives, both above and below EU thresholds, procedures of awarding contracts, institutions, review and remedies, public sector, utilities, defence and security procurement  The Concessions Law (2009) – works and services concessions  The Act on Public Private Partnership (2008)  The Law on Public Finances  Civil Code

Public procurement in Poland – general „traits”  Equal treatment of all economic operators but hardly anyone satisfied about the access to public procurement  Transparency – national publication as of 30,000 Euros but plentiful exemptions both based on EU directives plus some local specials (below the thresholds) – rules are good but to be on safe side - let’s try to excuse ourselves  Public access to any information about public procurement procedures („extreme” transparency)  Principle of competition but lack of competiveness of procedures

Public procurement in Poland– general traits  „ a Scottish shower” - public procurement – a root of all evil, a whipping boy or a panacea for all malaise of this world? It is either scathingly hot or freezingly cold….  If you succeed – it is your obligation nothing to be proud of – if you fail – you rightly take a rap  Lazy and inept procurement officers and unscrupulous economic operators

New directives – common traits  A seminal change – lack of words „coordination of” – no more pretence that EU legislators do not aim to harmonize public procurement rules but merely try to coordinate rules at EU level  Mostly mandatory rules – discretion of Member States greatly reduced (lack of trust?)  The new directives provide for „tool box” approach (let’s hope it is not Pandora’s box) - a lot of flexibility for purchasers but headache for national monitoring and regulating authorities

New directives – common traits Characteristic scheme of some new provisions: a) Contracting authority may do a) b) But the economic operator may do b) c) Then the contracting authority must do c) unless it transpires that: d) occurs – then the economic operator may not rely on action b)

New directives – common traits Inclusion of CJEU case law, more legal certainty, clear(?) rules but also new concepts which in turn would require interpretation More flexibility for contracting authorities but more complicated procedures Strengthening of the position of economic operators to the detriment of contracting authorities/entities – new tasks and obligations of the latter

New directives – common traits  Short time period for transposition of THREE directives: 18 April 2016 – the problem of „legislative fatigue” third big procurement reform in the EU since 2007 (in Poland, no single year since 2004 without transposing EU rules (implementing new or correcting already implemented provisions)  Adoption of legal rules do not suffice – organisational, administrative changes needed + change of approach and of old habits  Costs of implementation: -Electronic solutions, -New obligations of contracting authorities

New directives – traps for Polish authorities  electronic procurement  „new” criteria of award of contracts  new grounds for exclusion of economic operators  self cleaning in practice  new obligations of contracting authorities and concessions towards economic operators  new exemptions (exclusions), with notable example of „in house“

New directives – challenges of transposition -new concepts and terms -general principles and clauses – could you be more specific? Examples appreciated…. -this dreadful F – word* - you’d rather say what we can or have to do – the law must be simple but precise (the list of items to tick off in the process of awarding) -risk of litigation – new EU/Polish rules a boon to lawyers and experts – anything can be challenged and probably will be… * „F” is for „flexibility”

Approach toward transposition New public procurement law for 2014/24 and 2014/25 directives + defence and security procurement, review and remedies (as of national threshold 30,000 Euros, New concessions law – 2014/23 directive but only above 5 mln Euros Mostly copy out approach with certain „localisation” element (i.e. domestic legal traditions and habits) + unavoidable „gold plating” Adoption of the draft by the government late spring or early summer 2015; adoption - by the (new) Parliament /2016 but speeding of the process cannot be excluded

Institutional set up in Poland Decentralized system of public procurement Relevant institutions in the field of public procurement:  Public Procurement Office – central government regulatory and monitoring body  Review: National Appeal Chamber – 1st instance review body, common (district) courts – 2nd instance review bodies  Administrative courts – review bodies for concessions

Monitoring of public procurement rules The President of PPO conducts checks of: -legality of contract award processes, i.e. a conformity of contract award procedures with provisions of PPL -contract award procedures from their commencement to the conclusion of a contract (modifications of contracts as well), -within 4 years after the conclusion of the contract Checks are carried out on the premises of the Office.

Monitoring of public procurement rules 1. Obligatory ex ante checks (in case of contracts co - financed with EU funds):  = / > 10 mln euro for supplies and services,  = / > 20 mln EUR for works, 2. Ad hoc checks (ex-ante and ex-post):  at request,  ex officio.