Taking part in a public procurement procedure requires not only preparing a competitive tender, but also properly meeting all the formal requirements of the procedure.

In practice, even a good tender may be rejected if the documentation is incomplete, the contractor fails to show that it meets certain conditions or responds incorrectly to a request from the contracting authority.

Our firm supports entrepreneurs in matters concerning public procurement law – from analysing the tender documentation and preparing the tender, through correspondence with the contracting authority, to representation before the National Appeal Chamber (KIO) and help with performing the contract.

How we can help

As part of our legal services for contractors, our work includes, among other things:

• analysing the contract notice and the terms of reference (SWZ),
• assessing the conditions for participation in the procedure,
• analysing grounds for excluding the contractor,
• help in preparing the tender and the required documents,
• support in providing explanations and supplementing documentation,
• preparing questions on the content of the SWZ,
• correspondence with the contracting authority,
• analysing competitors’ tenders,
• assessing the decision on selecting the most advantageous tender,
• preparing appeals to the National Appeal Chamber,
• representation before the KIO,
• support in concluding and performing public procurement contracts,
• analysing the possibility of amending the contract during its performance,
• disputes related to the performance of public contracts.

Our help may concern a single procedure or ongoing support for an entrepreneur who regularly takes part in tenders.

Analysis of the SWZ and tender documentation

The first stage of taking part in a tender should be a thorough analysis of the documents prepared by the contracting authority.

We check, among other things:

• the conditions for participation in the procedure,
• grounds for exclusion,
• the required experience and capacity of the contractor,
• staff requirements,
• tender evaluation criteria,
• the required subjective and objective evidence,
• the draft contract provisions,
• the rules on the tender bond and the performance bond.

At this stage it is also possible to assess whether certain requirements are proportionate to the subject of the contract and whether they restrict competition in a way that may require a response from the contractor.

Preparing a tender in public procurement

Preparing a tender is not just about entering a price and sending documents.

Depending on the procedure, the contractor may be required to demonstrate experience, the availability of certain staff, appropriate licences, its economic or financial standing or other resources needed to perform the contract.

We help check whether the documentation prepared by the contractor meets the contracting authority’s requirements and whether the information in the individual documents is consistent.

We also support contractors relying on the experience or resources of other entities and entrepreneurs who want to bid for a contract jointly.

Consortia and relying on the resources of other entities

Not every entrepreneur has to meet all the requirements of the procedure on its own.

In certain situations, contractors may bid jointly by forming a consortium or rely on the resources of other entities.

However, such solutions require properly prepared documentation and a correct definition of the scope of each entity’s participation in performing the contract.

We help with:

• preparing the rules of cooperation between contractors,
• analysing the conditions for participation in the procedure,
• preparing the required commitments and powers of attorney,
• establishing the scope of work performed by individual participants,
• analysing liability related to the performance of the contract.

Questions and clarifications on the SWZ

If the tender documentation is unclear or contains questionable requirements, the contractor should not wait until submitting its tender.

At the appropriate stage of the procedure, questions on the content of the procurement documents can be sent to the contracting authority.

We help prepare questions and requests for clarification of the SWZ, especially where doubts concern the conditions for participation, the description of the subject of the contract, tender evaluation criteria or the draft contract provisions.

A well-prepared question can not only clarify an ambiguity but also draw the contracting authority’s attention to provisions that need to be changed.

Explanations and supplementing documents

During the procedure, the contracting authority may ask the contractor to submit additional documents, supplement them or explain certain information.

The way the contractor responds may directly affect its further participation in the procedure.

We help prepare responses to the contracting authority’s requests, including those concerning:

• subjective evidence,
• the content of the tender submitted,
• documents on experience,
• resources and staff,
• the price or cost of the tender,
• other doubts arising during the examination of tenders.

In particular, we analyse situations in which the contracting authority questions whether the price offered is realistic or whether the documentation submitted by the contractor is correct.

Abnormally low price

Offering a price lower than competitors’ prices does not in itself mean the tender is incorrect. It may, however, lead the contracting authority to ask the contractor for detailed explanations.

In such a case, it is important to properly demonstrate what the price offered is based on and why it allows the contract to be performed properly.

We help prepare explanations concerning an abnormally low price, analyse the contractor’s calculations and documents and assess what information should be presented to the contracting authority.

We also help when doubts concern the price offered by a competitor.

Selection of the tender and analysis of the competition

Once the information on the selection of the most advantageous tender has been published, it is worth checking not only the result of the procedure, but also the grounds on which it was based.

If the client’s tender was not selected, we analyse the procedure documentation and – to the extent possible – the tender of the selected contractor.

We check, among other things, whether:

• the contractor met the conditions for participation,
• there were no grounds for excluding it,
• the tender submitted met the requirements of the SWZ,
• the contracting authority applied the tender evaluation criteria correctly,
• the tender should not have been rejected,
• the contracting authority’s actions were carried out in accordance with the law.

If we find grounds to challenge the result of the procedure, we analyse the possibility of using legal remedies.

Appeal to the National Appeal Chamber

Public procurement procedures are conducted within a specific procedural framework. If the contracting authority breaches the rules, the contractor may in appropriate cases file an appeal to the National Appeal Chamber (KIO).

An appeal may concern, among other things:

• the content of the procurement documents,
• the conditions for participation in the procedure,
• rejection of the tender,
• exclusion of the contractor,
• selection of a competitor’s tender,
• failure to reject another contractor’s tender,
• other actions or omissions of the contracting authority affecting the result of the procedure.

Deadlines are very important in KIO cases, so after receiving an unfavourable decision from the contracting authority it is worth assessing the available options as quickly as possible.

Representation before the KIO

Our firm prepares appeals and represents contractors in proceedings before the National Appeal Chamber.

We analyse the procedure documentation, formulate allegations and requests and prepare arguments and evidence.

We also help contractors who want to join appeal proceedings on the side of the contracting authority or another contractor, if the outcome of the KIO proceedings may affect their interests.

Public procurement contract

Winning the procedure does not end the legal issues related to the contract.

The next stage is concluding and performing the contract, whose terms largely follow from the documentation prepared earlier by the contracting authority.

Before the contract is signed, we analyse, among other things:

• the contractor’s obligations,
• completion deadlines,
• the rules for acceptance of works, supplies or services,
• contractual penalties,
• the contractor’s liability,
• payment terms,
• the rules for indexation of remuneration,
• the possibility of amending the contract,
• the grounds for withdrawal from or termination of the contract.

Such an analysis is worth carrying out already at the procedure stage, because some contract provisions may significantly affect the profitability of the whole contract.

Amending the contract during performance

During the performance of the contract, circumstances may arise that the parties did not foresee when submitting tenders.

Public procurement law limits the possibility of freely amending the contract, but in certain situations allows it to be modified without a new procedure.

We help assess whether, in a specific situation, it is possible to change, among other things:

• the scope of the work,
• the completion deadline,
• the way the contract is performed,
• the remuneration,
• other terms of the contract.

We analyse both the provisions of the contract itself and the rules governing whether it can be amended.

Disputes in the performance of public contracts

Problems may also arise after the contract has been signed.

Disputes between the contractor and the contracting authority may concern, among other things, completion deadlines, the scope of work performed, acceptance, remuneration, additional works, contractual penalties or liability for delays.

In such cases we analyse the contract documentation and the parties’ correspondence, help conduct negotiations and prepare the contractor’s position.

If the dispute cannot be resolved amicably, we also represent the client in court proceedings.

Public procurement law for contractors

In public procurement, many problems can be spotted before the tender is even submitted.

That is why legal support does not have to start only once the tender has been rejected or a dispute with the contracting authority has arisen.

We help entrepreneurs from the start of the procedure – we analyse the SWZ, assess the requirements, support the preparation of documentation and respond to the contracting authority’s actions.

Our firm can take part in a single procedure or provide ongoing services to an entrepreneur who regularly bids for public contracts.

Our aim is to guide the contractor through the procedure in a way that limits the risk of formal errors and effectively protects its interests at every stage of bidding for the contract.