The Law of September 11, 2019 provides for very restrictive prerequisites for the award of a negotiated contract. These are set forth in Article 214 of the Law. Recently, the Public Procurement Office issued an opinion regarding the admissibility of a negotiated procurement under Article 214 (1) (5) of the Public Procurement Law for the protection of human health and life, in particular the purchase of medicines.
Unforeseen situations
Article 214(1)(5) of the PPL Act provides that the contracting authority may award a sole-source contract if, due to an exceptional situation not attributable to the contracting authority’s fault, which the contracting authority could not have foreseen, the immediate performance of the contract is required and the deadlines set for other award modes cannot be met. On more than one occasion, the National Board of Appeals has indicated that the concept of “exceptional situation” used in the provision of Article 214(1)(5) of the Public Procurement Law should be understood as random phenomena beyond the control of the contracting authority, such as natural disasters, catastrophes, failures, accidents. The specifics of the exceptional situation must make it impossible for the contracting authority to foresee its occurrence. An unforeseeable situation is one whose occurrence in the normal course of things is improbable,
and the unpredictability of such a situation by the contracting authority should be viewed in objective terms.
Is the purchase of drugs unpredictable?
In the opinion of the Public Procurement Office, it was pointed out that, in principle, also the purchase of life-saving drugs can justify the award of a negotiated contract. “In a situation in which it is necessary to purchase a drug related to health care and saving human life, due to the fact that the drug must be administered as soon as possible and at the same time it is not possible to meet the deadlines set for other contract award procedures, for reasons beyond the control of the contracting authority, there is justification for awarding a sole-source contract under Article 214(1)(5) of the Public Procurement Law. At the same time, the final assessment of the applicability of the above mode remains at the discretion of the contracting authority. It should take into account all the factual and legal circumstances surrounding the award of such a contract, including the time available to the contracting authority for its execution.”
Source: https://www.gov.pl/web/uzp/dopuszczalnosc-udzielenia-zamowienia-w-trybie-z-wolnej-reki-na-podstawie-art-214-ust-1-pkt-5-ustawy-pzp-w-celu-ochrony-zdrowia-i-zycia-ludzkiego-w-szczegolnosci-zakupu-lekow