Public procurement during an epidemic
How to increase the flexibility of tendering in epidemic conditions? Tenders are intended to meet public needs, and those in exceptional circumstances cannot wait.
Within the framework of the so-called special purpose anti-virus act, the legislator has introduced mechanisms that can support contracting authorities and contractors in more efficient execution of public services in the current situation.
We draw your attention to two regulations of this act:
- Article 6, which stipulates that the provisions of the Public Procurement Law shall not apply to orders for goods or services necessary to counteract COVID-19 if there is a high probability of rapid and uncontrolled spread of the disease or if the protection of public health requires it,
- point 4 of Article 25, which provides that public procurement rules shall not apply to service, supply or works contracts awarded in connection with the prevention or combating of an epidemic in an area in which an state of epidemic threat or state of epidemic has been declared.
Indeed, these provisions can help contracting authorities to acquire the most necessary goods and services quickly and efficiently, and at the same time enable contractors to continue to offer their potential and operate on the public market.
Irrespective of new legislative initiatives, contracting authorities and contractors should actively and much more courageously than usual make use of already available legal mechanisms, in particular those related to the performance of already concluded public procurement contracts. These include:
- making amendments to a public procurement contract by adapting the way in which it is performed to current conditions, in particular through the use of the institutions:
- a non-significant change,
- changes of a negligible value (10 or 15% of the order value depending on its subject matter),
- a change related to a situation not previously foreseeable;
- invocation to:
- the occurrence of force majeure,
- the occurrence of circumstances of consequential impossible performance,
- the premise of lack of required cooperation from the contracting authority,
- the extraordinary change of relationship clause (rebus sic stantibus),
- contractual hardship or material adverse change/event clauses,
This approach will minimise the risk of potential negative contractual consequences of not being able to continue the contract execution due to the epidemic.
It is also worth remembering to use legal protection measures – appeals to the National Appeal Chamber and complaints against the Chamber’s judgements sent to district courts. In this respect, the legal situation, regardless of the coronavirus epidemic, has not changed. Therefore, from the contractors’ point of view of, the key issue remains:
- compliance with the statutory deadlines for filing these appeals
- meeting other formal requirements for an appeal or complaint.
The breach of these requirements is likely to result in the impossibility of benefiting from a given legal remedy and thus in the impossibility of improving one’s legal position in the proceedings. In this respect we recommend maintaining full compliance with the provisions of the PPL, regardless of the current conditions and changes in the functioning of the National Appeal Chamber and courts, which these bodies inform about on their websites.
In case of any questions related to public procurement law regulations we encourage you to contact us.