Q: Will the Public Procurement Act be amended this year, as was the case in 2006 and 2007?
A: The process of transforming the public procurement scheme, commenced in 2004 with the adoption of the Public Procurement Act and completed with its amendment in 2007, produced a good law in the sense that it is such as it should be because it gives the ordering parties and contractors necessary freedom and at the same time guarantees the observance of basic standards and rules prescribed under the EU regulations. In my view, there is simply no need now for introducing any essential changes; looking for an excuse to make any, for instance under the pretext that public procurement procedures allegedly hinder the pursuit of investment projects would be very dangerous. It is time now to allow holders of public resources and entrepreneurs to work in quiet and to take decisions with a feeling that the law is stable. It is a different matter to correct or amend existing rules and regulations on a current basis or to extend the scope of orders by institutions laid down in the Act. Several amendments will have to be made in the very near future in several regulations following suggestions from the European Commission. Changes will also have to be considered in license regulations in the context of public-private partnership, so important in view of the Euro 2012 preparations.
I generally think that in 2004, new quality and good solutions corresponding to changing market and social conditions have been introduced in laws governing the problem of public procurement. Amendments introduced in 2006 and 2007 helped to speed up changes of the Polish public procurement scheme in that they widened all the general presumptions covering in particular the decentralisation of the system and passing decision powers to holders of public resources, that is to the ordering parties. That helped to cut down red tape and streamlined procedures. This, I think, was a move in the right direction.
The question remains open, however, whether the speed of these proper and most needed transformations and changes has not been too fast. We are watching carefully whether the decision taking autonomy granted to ordering parties is not being abused. What I have in mind is that during the past two years a significant rise was observed in the number of non-competitive, primarily free-hand bidding procedures. This is rather worrying because obviously most of the ordering parties decided that this is just the prescribed way to proceed even though the act merely states that such a procedure may be used. But clearly, the word “may” is not tantamount to “must”. That “may” does not infringe the law but I am worried that in the percentage-wise ranking of procedures applied under the act, free-hand orders come second after unlimited tenders.
Q: The problem of appeals is one that companies participating in tenders complain about. Can appeals be avoided?
A: There is no justification for such complaints, nor are appeals a real problem. In any procedure, appeals are necessary legal means of protecting the interests of entrepreneurs involved. There is, or rather there was, the problem of excessively protracted appeal procedures, endless unreasonable protests and appeals which in effect obstructed the procedure. This was indeed a thing to complain about but that was not a problem concerning entrepreneurs but rather the ordering parties. A record number of appeals was noted in 2004. Amendments of the act in 2006 introduced solutions which reduced the number of protests and appeals radically since. At present the number of appeals declined by half. Possibilities no longer exist for abusing the institution of appeal and protest to obstruct procedures. To complete the process of instituting a new legal system of legal protection means, a National Appeal Chamber has been established on December 5, 2007. Members of the Chamber elected in a complex competition procedure include law experts of great expertise as well as young lawyers enthusiastic about their work. I trust that thanks to that full professionalism will be assured in adjudicating disputes. By the end of December 2007, the Chamber adjudicated more than 70 appeals. Experts’ opinions as well as mine are positive.
Q: Are ecological aspects taken sufficiently into account in bidding procedures? What is your view on that?
A: That aspect is underestimated, not well understood and in many cases not taken into account at all by ordering parties. Ecological criteria are laid down in orders very rarely. I believe that this relates to a wider problem which we have to look into soon. What I have in mind is that for many years Polish ordering parties have attached an exceptionally great importance to the criterion of price. An overwhelming majority of the ordering parties have always considered the price as the most important and often as the sole criterion and ignored others such as ecology and quality. I think that it is hazardous to fetishize the price and I am persuading ordering parties to consider more diversified criteria, and to look at the criterion of price in the categories of final cost.