On 23 December 2010 the President of the Polish Public Procurement Office (the “PPO” or the “Office”) published his guidelines for all contracting parties organizing tenders for computer equipment subject to public procurement.
The inspiration for the development of this document was found by the PPO in the high number of breaches of public procurement rules by contracting parties in particular with regard to rules of fair competition and equal treatment of contractors. Those breaches had resulted from the indication in the specifications for a tender of a specific technology or performance characteristic of a specific product, or simply by indication of specific product names or manufacturers’ names.
The full text of the recommendations is available (in Polish only) at http://www.uzp.gov.pl/cmsws/page/?D;1273.
The document states that its aim is an attempt to standardise a complex matter. On one hand computer systems are in fact a product commonly acquired by entities obliged to comply with public procurement regulations, but on the other hand acquisition of such products often requires a specialist expertise.
The guidelines were intended to promote good practices and to eliminate mistakes in the description of the object of a tender for the supply of computer systems. The aim was to achieve this by specifying a manner of preparing descriptions of the object of a tender for the supply of the computer hardware that allows for the best preservation of competition throughout the whole of the procurement process.
The first problem that emerged after the guidelines were published was a question as to whether the PPO is authorized to publish such guidelines, and the legal force (if any) under Polish Public Procurement Law. In accordance with Polish law the PPO President may analyse the functioning of the system of public contracts and this may be the only legal basis for publication of the guidelines. The guidelines are therefore to be treated only as a supporting document and not as a binding regulation. However the contracting parties raised the concern that in fact the guidelines could be used as a basis of control of their procurement processes. This was of concern as a lack of knowledge in the very specific field of computer systems and a literal application of the guidelines could lead to many misunderstandings or even to severe sanctions from the PPO’s control department.
In the opinion of the Polish Chamber of Information Technologies and Telecommunications, the guidelines ignore the fact that sometimes the object of a tender for computer systems has to meet very high, but justified, requirements of the contracting party (e.g. as to the technology used, stability, uptime, service quality, availability of spare parts etc).
Additionally, it is also the case that the object of a tender cannot be described by reference to specific trade marks, patents or origin unless this is justified by the nature of the object of the contract or where the contracting party cannot describe the object of a tender in another way with sufficient precision, provided that such direct references to specific products are accompanied by the words “or equivalent”.
The basic principle provided in the guidelines is that computer systems should be required to comply with certain needs and functional capabilities specified by the contracting parties, rather than with particular technical parameters as in fact similar functions may be achieved by purchasing devices from many various suppliers. The PPO’s intention is that the needs of the contracting parties should be determined on the basis of the purpose for which the computers systems are to be purchased.
The Polish Chamber of Information Technologies and Telecommunications called for annulment of the guidelines. It requested the start of a consultation process to discuss future content of the guidelines in a process that should include representatives from all market participants. It was the Chamber’s opinion that the application of the guidelines could lead to a situation where the contracting parties are forced to make purchases which do not really meet their needs and have the wrong focus in relation to their existing infrastructure.