Control procedures in polish public procurement law

1
Control procedures in polish public procurement
law

• Public Procurement Office
• 2007

2
Table of contents

• I Institutions authorized to control public
  procurement procedures in Poland
• II.A Public Procurement Office in polish system
  of control institutions
• II.B. Different types of control (ex post and
  ex ante)
• II.C. Control consequences and appeals
• III Examples of most frequently breaches
  (formal breaches and breaches results in a
  recommendation of cancellation)

3
Institutions authorized to control public
procurement procedures in Poland
Institutions responsible for management of
structural funds in Poland
The Supreme Chamber of Control
Regional Chambers of Auditors
Public Procurement Office (PPO)
4
Institutions responsible for management of
structural funds in Poland

• Institutions responsible for management, of
  structural funds in Poland are Ministry of
  Regional Development and 16 marshal offices,
  which may delegate rights to other offices,
• Are responsible for complex management of several
  programmes funds from UE financial resources,
  including public contracts necessary in
  programmes implementation,
• In case of detection the breaches, Institutions
  must inform the PPO President who carries out a
  control,
• In case of confirmation of breaches which have
  impact on the result of the contract award
  procedure, the UE funds may be take away.

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The Supreme Chamber of Control vol. I

• The Supreme Chamber of Control is the supreme
  body of state audit and subordinate to the Lower
  Chamber of Polish Parliament (Sejm).
• The Supreme Chamber of Control audits the
  activity of bodies of governmental
  administration, the National Bank of Poland,
  state legal persons and other units of the state.
  
• The Supreme Chamber of Control may audit the
  activity of bodies of local government, communal
  legal persons and other communal organizational
  units and other economic subjects (businesses)
  and organizational units, to the extent to which
  they make use of state or communal property or
  resources and meet their obligations to the state.

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The Supreme Chamber of Control vol. II

• The Supreme Chamber of Control undertakes audits
  from the point of view of legality, economic
  efficiency, efficacy and integrity.
• The Supreme Chamber of Control, investigates in
  particular the implementation of the budgets and
  execution of laws or other legal acts with
  respect to the financial, economic and
  administrative activity of these units (concern
  public sector), the public contracts are
  investigate in wide range context.
• In case of reasonable crime or delinquency
  suspicion, The Supreme Chamber of Control notify
  the public prosecutors office (criminal
  responsibility) or/and higher level agency and
  the agent for public finance discipline
  (disciplinary responsibility).

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Regional Chambers of Auditors

• Regional Chambers of Auditors are national bodies
  of supervision and audit of financial economy.
• Chambers supervisions the activity of territorial
  self-government bodies, self-government public
  bodies and other bodies in limits of funds from
  territorial self-government bodies in scope of
  financial cases and audits the financial economy
  and public contracts.
• Chambers audits public contracts mentioned bodies
  on the basis of conformity with law and
  conformity the documentation with facts of a
  case if audit relate to government
  administration tasks fulfills by mentioned
  bodies, it also take into account propriety,
  honesty and economy criteria.

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Public Procurement Office vol. I

• PPO plays a policy making and coordinating role
  for the whole public procurement system
• The President of PPO is appointed by the Prime
  Minister
• The President of PPO undertakes audits only from
  the point of view of legality.
• Control Department in PPO is responsible for
  carrying out ex-ante and ex-post control on
  particular contract award procedures on the basis
  of information and documents obtained from
  awarding entities and other sources.

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Public Procurement Office vol. IIOptional control

• The President of PPO may carries out a control
  regardless of contract award value and
  contracting authority
• The PPO President may control the award of
  contracts prior to the conclusion of a
  procurement contract (ex-ante control) or within
  4 years of its award (ex-post control)
• The optional control is usually carry out in case
  of economic operators complains who inform the
  PPO President of breach the law during contract
  award procedure.

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Public Procurement Office vol. IIIObligatory
control

• Ex ante
• The ex-ante control is obligatory if the value of
  control is equal or exceeds equivalent of
  10,000,000 Euro for supplies and services and is
  equal or exceeds equivalent of 20,000,000 Euro
  for works or,
• The ex-ante control is obligatory at the request
  of institutions responsible for management of
  structural funds in Poland.

• Ex post
• The ex-post control is obligatory at the request
  of institutions responsible for management of
  structural funds in Poland.

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Public Procurement Office vol. IVConsequences of
the control procedure
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Public Procurement Office vol. VRecommendation
on cancellation of the procedure
The head of awarding authority appeals against
the PPO Presidents recommendations to The
National Review Body
The awarding authority does not apply post
control recommendations
The National Review Body cancel the Presidents
recommendations
The National Review Body uphold the Presidents
recommendations
The awarding authority conclude the contract
against The National Review Body opinion
The PPO President may apply to the court for the
statement of invalidity of the procurement
contract
Its forbidden to conclude the contract
The awarding authority may conclude the contract
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Public Procurement Office vol. VIFinancial
penalty

• The financial penalty cant be impose on the
  public finance sector units
• Only in case of the breaches of principles of
  award of contract
• The amount of the financial penalty shall be
  determined depending on the contract value, not
  on the kind of breaches (there are three rates of
  financial penalty 750 Euro, 7500 Euro and about
  40 000 Euro)
• The financial penalty can be impose independently
  of other sanctions, such as the obligation of
  cancellation of the procedure

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Most frequently breaches vol. IFormal breaches

• Request to submit not necessary documentations
  (for example documentation to confirm the
  conditions, when no condition is determine),
• Report prepared against the rules,
• The value of the contract determined with
  breaches but with no effect on choice the proper
  procedure,
• Lack of necessary information about procedure in
  the contract notice.

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Most frequently breaches vol. IIBreaches of
principles of award of contracts

• Failure the exclude economic operators, who dont
  fulfill conditions,
• Applying the negotiated procedure without fulfill
  conditions,
• The contract notice published in wrong
  publication (for example in Public Procurement
  Bulletin instead of The Official Journal of the
  European Union),
• Conclusion a public contract with economic
  operator without valid deposit,
• Failure the principle of fair competition through
  describe the object of contract by reference to
  trade marks.