Poland – Public procurement
2017-2020 NATIONAL ACTION PLAN
Pillar I: The state’s duty to protect human rights
2. Public procurement [page 17-18]:
On 28 July 2016, an amendment to the Public Procurement Law (PPL) came into force, introducing a number of changes related to the implementation of new EU directives in the field of public procurement in the Polish legal system.3 One of the objectives of the new regulation is to enable contracting institutions to make better use of public procurement to support social policy objectives, i.a., by introducing a requirement for employment under a contract of employment.
Recognising the problems of contracting authorities with the practical application of Article 29(3)(a) of the law, and intending to ensure the most effective application of employment requirements under a contract of employment, the Public Procurement Office prepared and published on its website a legal opinion on the application of Article 29(3)(a) PPL. This takes into consideration the position of the Inspector-General for the Protection of Personal Data and, at the same time, provides guidance regarding the ability of contracting authorities to verify the fulfilment by contractors and subcontractors of the requirement of employment under a contract of employment of individuals performing activities in the course of a contract, together with the sample provisions referred to in Article 36(2)(8)(a) of the Public Procurement Law.
According to Recommendations of the Council of Ministers on the consideration by the government administration of social aspects in public procurement, the heads of government administration units are obliged to analyse the possibility of applying social clauses in all public procurement proceedings, including in contracts that do not comply with the provisions of the Public Procurement Law.
Successful implementation of social goals through public procurement requires educational activities among public procurement market participants. The Public Procurement Office carries out educational activities aimed at promoting social issues in public procurement primarily on the basis of the National Action Plans for Sustainable Public Procurement. The National Action Plan for Sustainable Public Procurement 2017-2020 envisages educational activities such as conferences, training, or the preparation of relevant publications.
Plans are in store to identify and issue a catalogue of good practices and to develop model documents. As part of planned educational activities, the Public Procurement Office intends to present to the Polish contracting authorities, among other things, the possibility of including in the procurement procedure public symbols of a social nature based on the criteria of respecting human rights in the production of goods subject to a public contract. With respect to reporting information on sustainable public procurement, the contracting authority will, under the new rules for drawing up annual reports on contracts awarded, include detailed information on social contracts awarded in the new Part VIII of the annual report form (Contracts to which the provisions of the law taking into account social aspects apply). This will help obtain comprehensive data on the inclusion of social aspects in public procurement.
2021-2024 NATIONAL ACTION PLAN
| 11. Ministry of Foreign Affairs
Public procurement In the coming years, the MFA intends to uphold the current trend of supporting social policy through public procurement. Due to the entry into force – as of 1January2021 of the new law of 11 September 2019 – Public Procurement Law (Journal of Laws of 2021, items 1129 and 1598), the Ministry of Foreign Affairs amended the Regulations for the Award of Public Contracts at the Ministry of Foreign Affairs and the Guidelines for the Award of Public Contracts by Foreign Missions. It introduced, among other things, the obligation to prepare a needs and requirements analysis for contracts with a value equal to or exceeding the EU thresholds, taking into account social, environmental or innovative aspects of the contract. 12. Public Procurement Office The new Public Procurement Law (Journal of Laws of 2021, items 1129 and 1598) The new Public Procurement Law, which came into force on 1 January 2021 (Journal of Laws of 2021, items 1129 and 1598) introduces changes both in terms of existing instruments of a social nature, as well as completely new solutions aimed at increasing the extent to which social aspects are taken into account in the public procurement. Among the new solutions in the Public Procurement Law, which – in addition to the regulations already existing in this respect – are aimed at supporting the implementation of social policy objectives within the framework of public procurement, the following, inter alia, should be mentioned: • addition to the catalogue of rules for awarding public procurement contracts of the principle of economic efficiency (Article 17(1)), which means awarding a contract in a manner ensuring both the best quality of the subject-matter of the contract given the funds which the contracting body may allocate to its performance, as well as the best relation of expenditures to effects, including those of social, environmental and economic nature; • obligation to conduct a needs and requirements analysis before launching the procedure, taking into account the type and value of the contract. As part of the analysis, under Article 83 of the new Public Procurement Law, the contracting body should also indicate the possibility of considering the social, environmental or innovative aspects of the contract; • introduction of a legal basis for the creation of the state purchasing policy as a tool for implementing the state economic policy. Under the new Public Procurement Law (Article 21), the state purchasing policy defines the state’s priorities in the field of public procurement, as well as the desired direction of activities for contracting authorities with respect to awarding contracts, which includes in particular the purchase of innovative or sustainable products and services, taking into account, among others, corporate social responsibility and the use of social aspects. The new Public Procurement Law also includes solutions of a social nature that were provided for in the existing public procurement legislation as well. Based on the experience of previous years, these regulations were simplified and made more precise so as to allow for an even better implementation of social policy objectives. These are as follows: • Article 94, according to which the contracting body may stipulate in the contract notice that only economic operators having the status of a sheltered workshops, social cooperatives and other economic operators whose main purpose or main purpose of the activities of their organisational units that will perform the contract is the social and professional integration of socially marginalised persons, in particular persons with disabilities, the unemployed, jobseekers, who do not remain in employment or do not perform gainful employment, to-be self-reliant persons, persons deprived of liberty or released from prisons, persons with mental disorders, homeless persons, persons who have obtained refugee status or subsidiary protection in the Republic of Poland, persons under the age of 30 and over 50 years of age with job-seeker status, without employment and persons who are members of disadvantaged minorities, in particular members of national and ethnic minorities pursuant to the regulations on national and ethnic minorities and on regional language or persons who are members of groups that are otherwise socially marginalised, provided that the percentage of employment of persons belonging to one or more of the aforesaid categories is not less than 30% of the persons employed by the economic operator or in its unit that will perform the contract, • Article95, according to which the contracting body shall specify in the contract notice or procurement documents for service or construction works the contract performance requirements related to employment by the economic operator or subcontractor under an employment contract of persons performing activities within the contract performance, specified by the contracting body, if the performance of these activities involves the performance of the work in a manner specified in Article 22 § 1 of the Act of 26 June 1974 – the Labour Code. The regulation in question is aimed at limiting the avoidance by entrepreneurs of the use of employment contracts in favour of civil law contracts in cases where the use of the former is required by law. Strengthening the implementation of the provisions of the Labour Law in respect of public contracts performance by obliging the contracting body to establish employment based on an employment relationship, if there are premises for it indicated in the Labour Code, entails an improvement in terms of quality and stability of employment, • Article 96, which provides for the possibility for the contracting body to specify in the contract notice or procurement documents contract performance requirements, which may include, among others, aspects related to employment of the unemployed, jobseekers, who do not remain in employment or do not perform other gainful employment, to-be self-reliant persons, adolescents, persons with disabilities or persons from other groups indicated in the provisions on social employment. These requirements may also cover other social aspects such as the promotion of decent work, respect for human rights and labour law, support for social inclusion (including of persons with disabilities), the social economy and SMEs, the promotion of equal opportunities and the principle of ‘accessible and designed for all’, including sustainable criteria along with consideration of fair and ethical trade, • Article 104 on the possibility of direct reference by the contracting body to a specific label in the description of the subject-matter of the contract, the description of the contract award criteria or in the contract performance requirements in order to highlight the specific characteristics of the contract (including social ones). Labels by means of which contracting bodies may specify requirements connected with the pursuit of social objectives in the description of the subject-matter of the contract, the contract award criteria and the contract performance requirements , in the criteria on which their award to certain products and services is based, refer, inter alia, to compliance with social and economic rights, such as guaranteeing adequate remuneration for work, protecting women’s rights and combating discrimination against them (equal pay, participation in decision-making), prohibition of forced labour and non-use of child labour, freedom of association, health and safety at work, contribution to the development of local communities. Said right of the contracting body is subject to the cumulative fulfilment of the conditions set out in Article 104 of the PPL, • Article 100 concerning the requirement to draft the description of the subject-matter of the contract taking into account accessibility requirements for persons with disabilities and design for all users, unless this is not justified by the nature of the subject-matter of the contract, • Article 108(1), concerning the obligation to exclude from public procurement procedures economic operators who have been the subjects of a conviction for trafficking in human beings, • Article 224(3) which provides that one of the elements that the contracting body shall examine in the event that the offered price or cost, or their essential components, appear to be abnormally low in relation to the subject-matter of the contract or raise doubts of the contracting body as to performance of the subject-matter of the contract, is the compliance of the tender with labour law and social security provisions applicable in the place where the contract is performed. At the same time, the value of labour costs used by the economic operator for determining the price shall not be lower than the minimum wage for work specified under the provisions on minimum wage, • Article 242, which indicates that non-price contract award criteria used by the contracting body to select the most advantageous tender may be quality criteria, including functional characteristics such as accessibility for persons with disabilities or responding to user needs, as well as social aspects, including the social and occupational integration of disadvantaged persons. Given the entry into force of the new Public Procurement Law, the Public Procurement Office plans to organise a series of trainings and conferences devoted to social public procurement, where the above solutions, along with issues related to social public procurement, will be discussed. The Public Procurement Office plans also to prepare publications and materials that will not only cover the relevant regulations, but will also contain practical examples of their application, as well as model documents to support contracting bodies in correct application of social instruments provided for in the Public Procurement Law. These activities will be carried out by the Public Procurement Office with the participation of the funds from the European Social Fund under the project ‘Professionalization of human resources in the public procurement’ (Operational Programme Knowledge Education Development, Priority Axis II: Effective public policies for the labour market, economy and education, Measure 2.18: High quality administration services). – page 32/33/34/35 Appendix 2 (information of the Ministry of Foreign Affairs) GOOD PRACTICE CATALOGUE FOR FOREIGN MISSIONS IN THE FIELD OF BUSINESS AND HUMAN RIGHTS2 Recommendations – in the implementation of public procurement, actively apply the provisions of the ‘Public Procurement Law’ relating to the adherence to social aspects; – in the implementation of public procurement, take into account the so-called sustainable procurement criteria5 in order to integrate requirements, specifications and criteria ensuring environmental protection, social progress, and support for economic development; – page 48 |