Q 1. Can Contracting Authorities subject to the Act of 11 September 2019 – Public Procurement Law (“PPL”) award contracts for the purpose of assisting Ukrainian nationals without the application of this act?
Yes, they can, although the right to benefit from such exemption applies only to certain categories of Contracting Authorities and covers contracts with a strictly defined subject matter. The entities and contract subject matters eligible for the exemption are listed in the special Act on assistance to Ukrainian citizens in connection with the armed conflict in the territory of Ukraine of 12 March 2022 (“Special Law”).
Q 2. What categories of Contracting Authorities and which contracts related to assistance for Ukrainian citizens are exempted from the PPL under the Special Law?
In the light of the Special Law, the PPL does not apply to:
- public contracts awarded by municipal authorities, necessary for taking photographs free of charge in order for Ukrainian citizens to apply for PESEL numbers (Article 8 of the Special Law),
- the purchase by the Minister responsible for informatisation (currently the Prime Minister as the Ministry of Digital Affairs has been liquidated) of computer hardware and services necessary for the execution of municipalities’ tasks in the field of handling applications of Ukrainian citizens for PESEL numbers (Article 8 of the Special Law),
- public procurement necessary for the provision of assistance to Ukrainian nationals, as referred to in Article 12(1) to (4), (18) and (19) of the Special Law, by provincial governors, other government administration bodies, units subordinate to or supervised by government administration bodies, public finance sector units and other public authorities, local government units, unions of local government units or metropolitan unions, or public procurement necessary for the provision of information about assistance provided to Ukrainian nationals (Article 12(6) of the Special Law),
- public procurement necessary to enable Ukrainian nationals to exercise their right to family benefits, child-raising benefit (świadczenie wychowawcze), the ‘good start’ allowance, childcare allowance (rodzinny kapitał opiekuńczy) and financing of the reduction of parents’ fees for the stay of their child in a crèche, children’s club or with a child-minder/ at a day-care centre (Article 26(5) of the Special Law),
- public procurement necessary for the Head of the Office for Foreigners to provide medical care and assistance to Ukrainian nationals through accommodation and meals, and assistance in the form of monetary benefits (Article 80(5)(c) of the Special Law, which adds Article 112(5) to the Act on granting protection to foreigners within the territory of the Republic of Poland of 13 June 2003).
Q 3. Do Contracting Authorities need to comply with any additional formalities in connection with the award of public contracts exempted from the application of the PPL on the basis of the Special Law?
Yes, they do. In accordance with Article 12(7) of the Special Law, provincial governors, other government administration bodies, units subordinate to or supervised by government administration bodies, public finance sector units, other public authorities, local government units, unions of local government units or metropolitan unions, shall within 3 months from the end of the month in which the contract was awarded, announce contract awards in the Public Procurement Bulletin (Biuletyn Zamówień Publicznych), stating:
- the name and address of the registered office of the Contracting Authority;
- the date and place of concluding the contract, or stating that the contract was concluded electronically;
- the subject matter of the contract, the quantity of things or other goods, or the scope of services, as the case may be;
- the price or the maximum price, if at the date of the announcement the price is unknown;
- the factual circumstances justifying the contract being awarded without applying the PPL;
- the name of the entity or name and surname of the person, with whom the contract was concluded.
Do you want to learn more? Contact the author
Attorney at Law, Partner, Head of Public Procurement