Legal services during tender proceedings

We present you the following legal and administrative services at each stage of the tendering process relevant for open tender proceedings, as an example. Open tender is a one stage simple procedure in which following the publication of a tender notice the bidders submit their bids. More complicated projects are usually conducted as two-stage proceedings, that is as restricted tenders, negotiations with publications, competitive dialogue or concession proceedings. For the purpose of presenting our offer we refer to the simplest procedure mode.

Preliminary actions

At the commencement of the procurement procedure (publication of a tender notice) we assist our clients at:

  1. analysis of the contracting authority’s formal requirements set out in the tender notice;
  2. identification of the scope of documents required by the contracting authority to confirm compliance with conditions of participation in the proceedings i.e. documents certifying:
    • authorisations to perform specific activities or actions, if such authorisations are required by law;
    • knowledge and experience;
    • appropriate technical capability;
    • availability of personnel capable of performing the contract;
    • commercial and financial standing;
  3. drafting requests to the contracting authority for explanations concerning the specification of essential terms of the contract (SIWZ), including the wording of the draft contract;
  4. drafting applications for modifications to the specification of essential terms of the contract (SIWZ) and the provisions of the public procurement contract, so that they correspond with the requirements of the bidder;
  5. applying to the contracting authority for an extension of the offers submission deadline;
  6. monitoring notices changing the specification of the essential terms of the contract (SIWZ);
  7. monitoring and verification of the contracting authority’s responses to questions from potential bidders, including immediate preparation of translations of such responses;
  8. acting as proxy for service of documents and correspondence;
  9. if the contracting authority’s actions are blatantly illegal: benefiting from legal remedies by filing appeals:
    • against the tender notice;
    • against the specification of essential terms of the contract;
    • against the actions of the contracting authority regarding the description of the method used for the evaluation of the fulfilment of conditions for participation in the tender award procedure;
    • against actions taken by the contracting authority which are incompliant with the Public Procurement Act or against its failure to act in contravention of Public Procurement Act obligations;
  10. representing the bidder by an application to join appeal proceedings brought by another bidder;
  11. representing the bidder in appeal proceedings.

 

Consortium of bidders

In the event of the establishment of a consortium of bidders we assist our clients at:

  1. drafting and, if necessary, negotiating a consortium agreement;
  2. drafting powers of attorney for the consortium leader and consortium members.

 

Preparation of offer

At preparing of offer, we assist our client at:

  1. advising on completing documents confirming lack of grounds for exclusion of the bidder from the tender proceedings, other for Polish and other for foreign companies;
  2. drafting required declarations or explanations, in Polish and English language versions as well as advice on obtaining relevant certificates and declarations;
  3. advising on completing documents confirming the fulfilment of conditions of participation in proceedings (according to the contracting authority’s technical and financial requirements) and advising on drafting documents in Polish and English; the documents may encompass, depending on contracting authority’s instructions:
    • a list of works necessary to demonstrate fulfilment of knowledge and experience requirements;
    • a list of supplies or services provided, or periodic or ongoing supplies or services, necessary to demonstrate fulfilment of knowledge and experience requirements;
    • a list of tools, equipment and technical devices at the disposal of the services or works bidder in order to perform the contract along with details on the basis of the availability of these resources;
    • a list of persons who will participate in the performance of the contract, including information on their professional qualifications, experience and education necessary to perform the contract, as well as the scope of activities carried out by them and details on the basis of their availability;
    • a list of companies belonging to the same financial group;
    • declaration on availability of staff;
    • declaration attesting that persons who will participate in the performance of the contract have the required legal qualifications;
    • documents, i.e. financial report, or other documents stating turnover and liabilities and receivables;
    • information from the bank where the bidder holds an account, confirming the amount of funds held, or the bidder’s creditworthiness;
  4. advice on obtaining documents confirming holding a valid and paid insurance policy;
  5. preparation of translations of documents into Polish;
  6. confirming compliance with originals of copies of documents, in accordance with relevant regulations;
  7. advising on completing documents confirming the proper performance of services in accordance with the jurisprudence of the National Appeals Chamber;
  8. drafting a list of references adequate to the needs of the tendering procedure;
  9. advising on drafting documents confirming submission of a bid security;
  10. monitoring the deadline for submitting a bid security;
  11. technical and administrative activities related to the preparation of the offer:
    • preparing printouts, copies and originals of declarations and documents;
    • numbering the pages of the offer;
    • preparing the offer in the number of copies required by the contracting authority;
    • appropriate separation and designation of the part of the offer constituting business secrets;
  12. final verification of the completeness and technical and formal compliance with the contracting authority’s requirements (including verification of signatures, seals, translations, etc.);
  13. submitting the offer at the office of the contracting authority;
  14. obtaining confirmation of receipt of the offer by the contracting authority.

 

Actions following the submission and the opening of offers

There certain actions following the submission and the opening of offers which involves legal assistance:

1. Communication with the contracting authority:

  1. making changes or withdrawing the offer before the deadline for submission of bids;
  2. presence at the contracting authority’s office during the opening of offers;
  3. completion of documents at the request of the contracting authority;
  4. providing explanations regarding submitted declarations or documents;
  5. providing explanations on the content of the offer at the request of the contracting authority during examination and evaluation of offers;
  6. reporting the need to correct the offer for obvious misprints, obvious computational errors and other errors which result in inconsistency with specification of essential terms of the tender, but do not cause significant changes to the contents of the offer.

2. Analysis of the possibilities for the exclusion of competitive offers

  1. analysis of competitors’ offers in order to identify substantive and procedural errors or omissions, which result in the exclusion of a competitor from the tendering procedure;
  2. requesting the contracting authority to exclude a competitor because of an abnormally low price.

3. Actions regarding conclusion of the awarded contract;

  1. advice on lodging a performance bond;
  2. advice on the process of changing the form of the performance bond during the execution of the contract;
  3. representing the bidder in connection with the conclusion of the awarded contract.

4. Challenging selection of the best offer or the conclusion of the awarder contract

  1. use of legal remedies by filing appeals against the actions of the contracting authority resulting in:
    • exclusion of an appellant from the contract award procedure;
    • rejection of the offer submitted by the appellant;
  2. representing the bidder in proceedings at the National Appeals Chamber (Krajowa Izba Odwoławcza)
  3. preparation and submitting a complaint to the regional common court against the decision of the National Appeals Chamber;
  4. representation of the bidder in litigation in the regional common court;
  5. requesting the Chairman of the Public Procurement Office to submit a final appeal against the court ruling;
  6. requesting invalidation of the awarded contract pursuant to Article 146 of the Public Procurement Law;
  7. requesting the Chairman of the Public Procurement Office to commence an inspection of the contract award procedure.