The procedure for awarding a public contract is transparent. Transparency is expressed, among other things, by the fact that everyone has the right to request the contracting authority to provide access to the documents of the procedure. Depending on the type of documents, they are made available at different times. According to Article 74 of the Act of 11 September 2019 on Public Procurement Law, the protocol of the procedure is public and made available upon request. Attachments to the protocol of the procedure are made available after the selection of the most advantageous offer or the cancellation of the procedure, with the following provisions:
- Offers with attachments are made available immediately after the opening of the offers, but no later than 3 days from the date of opening the offers, taking into account Article 166(3) or Article 291(2), second sentence.
- Requests for participation in the procedure with attachments are made available from the date of notification of the evaluation results of those requests.
Based on the cited provision, there are doubts about when to provide explanations for conspicuously low prices submitted by bidders.
Explanations for a conspicuously low price – attachment to the protocol of the procedure
The National Chamber of Appeals, in its judgment of 21 March 2023, case file KIO 649/23, confirmed that in public procurement proceedings, the explanations of the bidder regarding suspicions of a conspicuously low price submitted in the offer constitute an attachment to the protocol of the procedure, which is made available upon request by the bidder after the selection of the most advantageous offer. The protocol of the procedure, as a separate document created by the contracting authority, is the main element of the procedural documentation, while all the documents essential for the course of the procedure produced by the contracting authority or received from the bidders or in connection with the procedure constitute attachments to the protocol.