Table of Contents:
1. Do objective reasons for specifying a particular date need to exist?
2. Example of a case reviewed by the National Appeal Chamber (KIO)
3. Consequences for the Contracting Authority
4. Importance of indicating specific calendar dates in procurement documents
The Act of September 11, 2019, Public Procurement Law, states that contract execution deadlines should be specified in days, weeks, months, or years, unless specifying the date is justified by an objective reason. This way of defining deadlines ensures that contractors are not negatively affected by delays in public procurement procedures.
In practice, especially at the end of a calendar year, situations arise where the Contracting Authority must spend allocated funds by the year’s end. In such cases, specifying a particular completion date, such as December 31, 2024, may be desirable and, in some cases, feasible.
Do objective reasons for specifying a particular date need to exist?
In the explanatory memorandum of the Public Procurement Law, the legislator indicated that an obligation of the Contracting Authority arising from a funding agreement for the procurement constitutes an objective reason justifying the specification of a calendar date for contract execution (see Government Bill No. 3624 – Public Procurement Law).
This position is upheld by the National Appeal Chamber (KIO), which in its ruling of November 16, 2021, stated that the deadline for spending funds granted under a funding agreement constitutes an objective reason justifying the indication of a calendar date for contract execution.
Example of a case reviewed by the National Appeal Chamber
In a case reviewed by KIO, the procurement was significantly co-financed by EU funds under the Operational Programme Infrastructure and Environment 2014-2020. As part of the project, the Contracting Authority entered into a funding agreement on April 20, 2020, with the Oil and Gas Institute. The eligibility period for expenditures was specified as May 31, 2023. However, under Article 13(1)(2) of the Act of April 3, 2020, on special solutions supporting operational program implementation in connection with COVID-19 (Journal of Laws, item 694), this deadline was extended by 90 days, to August 29, 2023.
Under §7(3) of the funding agreement, the Contracting Authority was obligated to complete the physical scope of the procurement within the eligibility period and submit a payment request within 30 days of the end of that period.
Consequences for the Contracting Authority
This means that the financing of the procurement with EU funds required the Contracting Authority to make payments related to the contract execution and submit a payment request to the Oil and Gas Institute by August 29, 2023. Setting the final acceptance date as July 4, 2023, was aimed at ensuring a proper procedure, including preparation of the payment request.
Importance of indicating specific calendar dates in procurement documents
This circumstance represents an objective reason that the Contracting Authority considered when specifying technical and final acceptance deadlines in the procurement documents by indicating specific calendar dates. This regulation allows for financing the subject of the procurement (to a significant extent) with EU funds, ensuring the Contracting Authority complies with its funding agreement obligations, i.e., fulfilling its commitments under the contract (KIO ruling of November 16, 2021, case no. KIO 3148/21).
