NEW PREMISE IN FAVOUR OF REJECTION OF THE PROPOSAL

Art. 80 of the Act, day of 5th 2018 on the national cyber-security system (Journal of Laws from 2018, item 1560), which gives new wording to the Art. 89, Par. 1 pt. 7d of Pzp Act, comes into force on the 28th of August, 2018.

In compliance with new content of Art. 89, Par. 1 pt. 7d of Pzp Act, the ordering party shall reject the proposal if its acceptance violates the public security or state’s essential security interests, including security of entities covered by a uniform list of objects, installations, appliances and services that are part of critical infrastructure, which is referred to in Art. 5b, Par. 7, Pt. 1 of the Act, day of 26th April, 2007 on management of crisis (Journal of Laws from 2018, item 1401), and such security or interest cannot be guaranteed otherwise.

In accordance with amendment made to content of Art. 89, Par. 1 pt. 7d of Pzp Act, it was particularised that proposal submitted in public procurement proceedings shall be subject to rejection also in case if implementation of solutions adopted in it should result in violation of security of entities indicated in a uniform list of objects, installations, appliances and services that are part of critical infrastructure, prepared by the Director of the Government Centre for Security. The list, which is referred to above, as per the content of the Art. 5b Par. 7 pt 1 of the Act, day of 26th April, 2007 on management of crisis (that is Journal of Laws from 2018 r., item 1401) is of confidential nature. The ordering parties, based on Art. 5b, Par. 7, Pt. 4 of aforesaid Act are apprised by the Director of the Government Centre for Security of inclusion of objects, installations, appliances and services in the list, of which they are independent or dependent owners, possessors. By analysis of legitimacy of rejection of contractor’s offer grounded on new legal basis – the ordering party shall be obliged to prove that: (1) implementation of solutions adopted in offer would result in violation of security of critical infrastructure objects covered by the list, (2) such violation is related to violation of public security or state’s essential security interests, (3) public security or state’s essential security interests cannot be guaranteed otherwise than by rejecting the offer containing solutions that might lead to violation of entities’ security.

Act from the day of 5h July, 2018 on the national cyber-security system, which amends the Act on the Public Procurement in Art 80 does not bring into effect the temporary regulations concerning the amended Art. 89 Par. 1 pt. 7d of Pzp Act, which means that this rule shall be also held applicable to not yet completed public procurement proceedings instituted before 28th August, 2018.