Rafał Świerzbiński | In Principle

For many years, contractors have been required to submit a European Single Procurement Document (ESPD) during the course of procedures for award of public contracts in Poland. But the way this form should be completed still raises doubts among contractors and contracting authorities. An example is the question about incidents of early termination of previous contracts. Contractors aren’t sure whether their response to this question should indicate only situations meeting the conditions for exclusion set forth in Art. 109(1)(7) of the Public Procurement Law.

The issue of trade secrets in Polish public procurement continues to generate doubts and objections. Recent actions by contracting authorities and rulings by the National Appeal Chamber show that less and less information can be classified as trade secrets. The chamber closely examines whether contractors have met all the prerequisites for treatment of classified information as a protected trade secret.

Contrary to popular belief, contracting authorities do not have unlimited possibilities to invalidate procedures for award of public contracts. Once a procedure is launched, they can invalidate it only in selected situations. And if a contractor challenges the grounds for invalidation of the procedure by the contracting authority, the contracting authority will have to demonstrate the existence of such grounds and defend its position before the National Appeal Chamber.

A key issue in protecting trade secrets in public procurement is to demonstrate the economic value of the confidential information. Despite many rulings by the National Appeal Chamber and interpretations by commentators, it remains a controversial issue.

The Ministry of Development and Transport has published a long-awaited bill on certification of public procurement contractors. Certification is expected to make it easier for contractors to prepare bids, and increase the transparency of the contractor vetting process.