Control procedures in polish public procurement law Public Procurement Office 2007

Table of contents I – Institutions authorized to control public procurement procedures in Poland II.A – Public Procurement Office in polish system of control institutions II.B. – Different types of control (ex – post and ex – ante) II.C. – Control consequences and appeals III – Examples of most frequently breaches (formal breaches and breaches results in a recommendation of cancellation)

Institutions authorized to control public procurement procedures in Poland: Institutions responsible for management of structural funds in Poland The Supreme Chamber of Control Regional Chambers of Auditors Public Procurement Office (PPO)

Institutions responsible for management of structural funds in Poland: Institutions responsible for management, of structural funds in Poland are: Ministry of Regional Development and 16 marshal offices, which may delegate rights to other offices, Are responsible for complex management of several programmes funds from UE financial resources, including public contracts necessary in programmes implementation, In case of detection the breaches, Institutions must inform the PPO President who carries out a control, In case of confirmation of breaches which have impact on the result of the contract award procedure, the UE funds may be take away.

The Supreme Chamber of Control vol. I The Supreme Chamber of Control is the supreme body of state audit and subordinate to the Lower Chamber of Polish Parliament (Sejm). The Supreme Chamber of Control audits the activity of bodies of governmental administration, the National Bank of Poland, state legal persons and other units of the state. The Supreme Chamber of Control may audit the activity of bodies of local government, communal legal persons and other communal organizational units and other economic subjects (businesses) and organizational units, to the extent to which they make use of state or communal property or resources and meet their obligations to the state.

The Supreme Chamber of Control vol. II The Supreme Chamber of Control undertakes audits from the point of view of legality, economic efficiency, efficacy and integrity. The Supreme Chamber of Control, investigates in particular the implementation of the budgets and execution of laws or other legal acts with respect to the financial, economic and administrative activity of these units (concern public sector), the public contracts are investigate in wide range context. In case of reasonable crime or delinquency suspicion, The Supreme Chamber of Control notify the public prosecutor’s office (criminal responsibility) or/and higher level agency and the agent for public finance discipline (disciplinary responsibility).

Regional Chambers of Auditors Regional Chambers of Auditors are national bodies of supervision and audit of financial economy. Chambers supervisions the activity of territorial self- government bodies, self-government public bodies and other bodies in limits of funds from territorial self-government bodies – in scope of financial cases and audits the financial economy and public contracts. Chambers audits public contracts mentioned bodies on the basis of conformity with law and conformity the documentation with facts of a case; if audit relate to government administration tasks fulfills by mentioned bodies, it also take into account propriety, honesty and economy criteria.

Public Procurement Office vol. I PPO plays a policy making and coordinating role for the whole public procurement system The President of PPO is appointed by the Prime Minister The President of PPO undertakes audits only from the point of view of legality. Control Department in PPO is responsible for carrying out ex-ante and ex-post control on particular contract award procedures on the basis of information and documents obtained from awarding entities and other sources.

Public Procurement Office vol. II Optional control The President of PPO may carries out a control regardless of contract award value and contracting authority The PPO President may control the award of contracts prior to the conclusion of a procurement contract (ex-ante control) or within 4 years of its award (ex-post control) The optional control is usually carry out in case of economic operators complains who inform the PPO President of breach the law during contract award procedure.

Public Procurement Office vol. III Obligatory control Ex – ante The ex-ante control is obligatory if the value of control is equal or exceeds equivalent of 10,000,000 Euro for supplies and services and is equal or exceeds equivalent of 20,000,000 Euro for works or, The ex-ante control is obligatory at the request of institutions responsible for management of structural funds in Poland. Ex – post The ex-post control is obligatory at the request of institutions responsible for management of structural funds in Poland.

Public Procurement Office vol. IV Consequences of the control procedure Ex – post controlEx – ante control Formal breaches of law Information about breaches Information about breaches and the post control recommendations Breaches of principles of award of contracts Notification the component agent for public finance discipline and in case of hard breaches – public prosecutor’s office; The PPO President may also impose a financial penalty. Recommendation on successive evaluation of tenders or recommendation on cancellation of the procedure

Public Procurement Office vol. V Recommendation on cancellation of the procedure The head of awarding authority appeals against the PPO President’s recommendations to The National Review Body The National Review Body cancel the President’s recommendations The awarding authority may conclude the contract The National Review Body uphold the President’s recommendations It’s forbidden to conclude the contract The awarding authority conclude the contract against The National Review Body opinion The awarding authority does not apply post control recommendations The PPO President may apply to the court for the statement of invalidity of the procurement contract

Public Procurement Office vol. VI Financial penalty The financial penalty can’t be impose on the public finance sector units Only in case of the breaches of principles of award of contract The amount of the financial penalty shall be determined depending on the contract value, not on the kind of breaches (there are three rates of financial penalty: 750 Euro, 7500 Euro and about Euro) The financial penalty can be impose independently of other sanctions, such as: the obligation of cancellation of the procedure

Most frequently breaches vol. I Formal breaches Request to submit not necessary documentations (for example documentation to confirm the conditions, when no condition is determine), Report prepared against the rules, The value of the contract determined with breaches but with no effect on choice the proper procedure, Lack of necessary information about procedure in the contract notice.

Most frequently breaches vol. II Breaches of principles of award of contracts Failure the exclude economic operators, who don’t fulfill conditions, Applying the negotiated procedure without fulfill conditions, The contract notice published in wrong publication (for example in Public Procurement Bulletin instead of The Official Journal of the European Union), Conclusion a public contract with economic operator without valid deposit, Failure the principle of fair competition through describe the object of contract by reference to trade marks.