How to choose the best contractor? A new approach to procurement in Poland

In Poland, almost 90% of procedures above the EU thresholds are carried out under the open tender procedure. Only 0.7% of them are conducted under the restricted tender procedure, including the pre-qualification of contractors. We help our clients to change their approach to procurement and prepare procedures for them to assess the quality of contractors' experience.

Qualitative evaluation of contractors' experience, also known as expert evaluation, is still a novelty on the Polish market, unlike in other EU countries. The National Chamber of Appeal, in its judgment of 12 August 2022, KIO 1908/22, finally ruled that the graded evaluation of experience is objective and allows to select the contractors that are most capable of performing the contract.

Guidelines for qualitative criteria

The first study comparing qualitative selection criteria and tender evaluation in Poland and other EU countries was carried out by the Ministry of Infrastructure and Development in 2014 ("Evaluation of solutions used to evaluate and select tenders in public procurement procedures for road and rail projects implemented under the OPI&E against solutions used in other EU Member States"). The second study was published in 2020. ('Non-price criteria for the evaluation of tenders', Public Procurement Office).

Why are contracting authorities reluctant to use qualitative criteria?

Despite the development of official reports and guidelines, the use of qualitative selection criteria by contracting authorities is still not widespread. This is mainly due to a lack of good practice and fear of scrutiny. Poland is one of those UE countries where the percentage of appeals is among the highest. This does not encourage contracting authorities to be pioneers in using qualitative selection criteria.

In one of the tenders, the contracting authority defined the following selection criteria: (1.) the similarity of the investment to the subject of the contract, (2.) the way of solving the problems, and (3.), this time an economic one, assessing whether the contractor had an investment rating with one of the three leading rating agencies and at what level: Standard & Poor's, Fitch Ratings and Moody's.

Unique procurement required unique approach

This was a contract for critical rail infrastructure in Poland (modernisation of the MaƂaszewicze trans-shipment area). It is said to be "the gateway through which 80% of land transport from China to the EU passes". Such a strategic contract for Poland required a special approach to selecting the most reliable contractor to complete the contract without delay.

The contractor accused the contracting authority of failing to provide comprehensible and objective evaluation principles and of using criteria that were not measurable and left room for discretion. For example, for the criterion of similarity, a scale of 1-5 was adopted, where 1 - no similarity, 2 - low similarity, 3 - similarity, 4 - high similarity, 5 - meeting or exceeding the characteristics of the contract.

The National Chamber of Appeal has strongly confirmed that this is good practice. The degree of similarity of a contract cannot be assessed, for example, by reference to value. Only by taking into account all relevant information can the complexity of the reference investment and its degree of similarity to the contract in question be assessed.

How do you choose the best law firm?

In our work, we very often come across tenders for legal services that evaluate, for example, the value of projects the firm has advised on or the number of negotiations it has conducted. However, in the work of a lawyer, it is not possible to compare services on a one-to-one basis. The client should have the right to assess the complexity and similarity of the service, the experience and chemistry of the team, how risks were minimized, how problems were resolved, whether implementation was at the last minute or there were accelerated implementation deadlines, what contract amendments were made.

The establishing the contractor’s credibility is a gradual process, which is why we believe that sooner or later contracting authorities will start using good practices, of which there are more and more in Poland.

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