What does public procurement have in store for us in 2022

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The year ahead will see many changes in public procurement law. While not as far-reaching as those coming in the wake of the Public Procurement Law Act (“PPL”) that entered into force in 2021, they will nevertheless impact the public procurement process to a significant degree.

Set out below are the most important changes that took effect at the beginning of this year and the ones we can expect to come into force as the year progresses.

Regulations effective as of 1 January 2022

  • Higher EU thresholds. EU thresholds are going up, as is the average EUR exchange rate that will apply in conversions of the EUR threshold amounts into PLN, as shown in the table below.
   Until 31 December 2021  As of 1 January 2022
 Construction works  PLN 22,840,755  PLN 23,969,275
 Supplies and services — central government contracting authorities  PLN 593,433  PLN 623,504
 Supplies and services — local government contracting authorities  PLN 913,630  PLN 957,524
 Social and other specific services  PLN 3,201,975  PLN 3,340,200
 Social and other specific services — sectoral contracting authorities  PLN 4,269,300  PLN 4,453,600
 Supplies and services — sectoral or public contracting authorities in the fields of defense and security  PLN 1,827,260  PLN 1,919,502
 Construction works — sectoral or public contracting authorities in the fields of defense and security  PLN 22,840,755  PLN 23,969,275
  • Mandatory opinion of the General Counsel to the Republic of Poland. Entities representing the State Treasury must obtain a legal opinion regarding the provisions of their public contracts from the General Counsel of the Republic of Poland (Prokuratoria Generalna) already when the subject matter of the contract they wish to enter into exceeds PLN 50,000,000.
  • New electromobility-related obligations. The amended Act on Electromobility and Alternative Fuels has imposed new obligations on contracting authorities who are now required to achieve specific minimum targets for the share of low- and zero-emission vehicles in the total number of vehicles covered by public procurement within two periods: by the end of 2025 and by the end of 2030. This will result in contracting authorities requiring a higher percentage of low- and zero-emission vehicles in the fleets used in the performance of public contracts, including contracts for the supply of motor vehicles, public road transport services or waste disposal.
  • Regulations implementing the PPL. In addition, a number of implementing regulations to the PPL have come into force concerning, among other things:

a) the scope of information to be provided in the annual report on contracts awarded, the form of this report, its manner of delivery and procedures for correcting it;

b) the methodology and grounds for cost estimations by investors, calculation of the projected costs of design works and projected costs of the construction works set out in the functional-utility program;

c) detailed scope and form of design documentation, technical specifications for the performance and acceptance of construction works, and of the functional-utility program;

d) methodology for calculating costs in the life cycle of buildings and manner of presentation of information about those costs.

Regulations to take effect later in the year

  • Register of contracts. A register of contracts concluded by entities representing the public finance sector (incl. public procurement contracts) will be launched on 1 July 2022. This will list contracts subject to disclosure under the Access to Public Information Act, with values exceeding PLN 500. In addition to basic information serving to identify a given contract, the register will contain information on additions to and amendments of contracts, termination by mutual consent of the parties, as well as information on any rescission, termination or expiration of each contract.
  • Whistleblowers. 17 December 2021 was the deadline for the implementation into Polish law of the Whistleblower Directive. Accordingly, a Polish Act on the protection of persons who report breaches of the law is slated to take effect in 2022. The Directive seeks to enhance the enforcement of EU laws and policies in specific areas, including in the public procurement sector. It offers protection to persons (including employees) reporting violations of public procurement regulations in the public sector, as well as in private businesses with at least 50 employees. The final wording of the Polish legislation is yet to be announced, as the draft bill is still being worked on by legislators.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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