The new Public Procurement Law, which will enter into force on 1 January 2021, resolves several problems related to the public procurement process under the current act. One of the issues that are interpreted in a divergent manner is the issue of selecting an offer after the expiry of the offer binding period.

As a result of preliminary questions submitted by the National Board of Appeal, the Court of Justice of the European Union issued a decision in the Saferoad case (C-35/17) on 13 July 2017. The case concerned a procedure during which the contracting authority asked contractors to extend the period of binding bids by 60 days. However, that time limit has expired and the proceedings are still pending. The National Appeal Chamber has doubts as to whether, in this situation, contractors are required to extend the tender validity period once again, this time independently. The CJEU took the position that recognizing the existence of such an obligation on the part of the contractor, despite the fact that it was not provided for in the act, in the contract notice, or in the specification of contract conditions, would be contrary to the principle of equal treatment and transparency.

After the CJEU issued the ruling, the Public Procurement Office also took a position in the discussed case, which decided that the CJEU ruling would not apply in the Polish legal system, as the grounds for rejecting the offer were explicitly indicated in the provisions of the Public Procurement Law.

In the opinion of the Public Procurement Office, failure to extend the period of validity of the offer in both cases should be considered tantamount to the contractor’s resignation from further participation in the public procurement procedure.

The Public Procurement Law, as applicable from January 1, 2021, clearly states that the Ordering Party selects the most advantageous offer within the bid validity period specified in the procurement documents. At the same time, pursuant to Art. 252 paragraph. 2 of the Public Procurement Law, if the bid validity period has expired before the selection of the most advantageous bid, the contracting authority calls on the contractor whose bid has received the highest rating to express written consent to the selection of its bid within the time limit set by the awarding entity. In the absence of the consent referred to in Art. 252 paragraph. 2 of the Public Procurement Law, the contracting authority asks for such consent to the next contractor whose tender was rated the highest, unless there are grounds for canceling the procedure (Article 252 (3) of the Public Procurement Law). Therefore, after the expiry of the bid validity period, the possibility of selecting the most advantageous bid depends on the will of the contractor and may take place if the contractor whose offer received the highest rating agrees in writing to select his offer. However, the mere request of the contractor to give such consent is the contracting authority’s responsibility.