Newsletter

Contractual penalties at tenders

The public procurement sector, due to its size, should remain under special supervision (in 2015 its value amounted to over PLN 116 billion). Meanwhile, Federacja Przedsiębiorców Polskich (Federation of Polish Entrepreneurs), in the report entitled “Niewłaściwe stosowanie wybranych klauzul umownych przez zamawiających w ochronie zdrowia” (Incorrect application of selected contractual clauses by contracting authorities in health care), indicates that the institution of contractual penalties is being abused.  Additionally, the contracts include, among others, unrealistic delivery times and too long payment deadlines.
As indicated in the report, selective non-price bidding criteria are often used in the contracts. Other complaints include: lack of possibility to negotiate the contract’s terms and conditions, as well as enforcement of statutory interest waivers or prohibition of remuneration assignment.

Chairman of the Federation of Polish Entrepreneurs Marek Kowalski, points out that:  “by introducing an amendment to the PPL, the government spoke of “bowing to the contractors”, however as the practice shows, companies are still struggling with difficulties during the tender procedure. Many provisions of ToR are improperly or imprecisely constructed and as a result the contractors lose the rights to ask questions or determine details of the terms of the tender, and are also charged with excessive contractual penalties.  Such problems can be encountered, for example, in health sector procedures, which is a threat not only to contractors but also to the entire society – incorrect tenders mean potentially faulty implementation of tasks and, as a result, threat to the lives and health of Poles – adds Kowalski.

According to the Chairman of the Federation of Polish Entrepreneurs, well-construed tenders are the basis for the efficient spending of public funds – only then there is a chance of providing services at the highest level by reliable contractors. He suggests that a systematic control of the conducted tenders should be provided and that actions aimed at eliminating inappropriate practices on the public procurement market should be taken.