EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

situations caused by them, and certain other acts (Journal of Laws No. of 2020, item 568) referred to as the Anti-Crisis Shield No. 2 was another legal act issued by the Polish legislature. In the amending act, Article 6 was extended in such a way that the understanding of the necessity to take actions aimed at counteracting COVID-19 in the context of the application of the provisions of the public procurement law has been made more precise. The main goal of counteracting was to combat the negative effects of, inter alia, socioeconomic problems caused by COVID-19. The conditions for exempting a specific procurement of goods or services from the provisions of the public procurement law must be met jointly. Each time, it is necessary for the contracting authority to assess whether both premises are present simultaneously. In this context, the Article 6 received the additional paragraph 2, in which the legislature exempted Bank Gospodarstwa Krajowego (National Development Bank) and the Social Insurance Institution from the application of the provisions of the public procurement law. In the case of the aforementioned Bank, the legislature’s intention was to exempt this institution from the application of the provisions of the public procurement law when the bank awards contracts related to the implementation of government programs, and which are part of the policy of counteracting the negative economic effects caused by COVID-19. In turn, the Social Insurance Institution could withdraw from the application of the public procurement law in the case of establishing the rights or paying the benefits to entrepreneurs, the so-called downtime benefits (benefits paid when the work cannot be done due to COVID) and the exemption of entrepreneurs due to unpaid social or health insurance contributions (Article 15zza, Article 31 zv.). Moreover, in the Article 15(r)(1) of the anti-crisis shield 2, the legislature introduced the obligation to immediately inform the parties about the impact of circumstances related to the occurrence of COVID-19 on the proper performance of a contract. Mutual information should concern such circumstances as: the absence of employees caused by COVID-19, decisions issued by the Chief Sanitary Inspector in connection with COVID-19, orders issued by voivodes or the Prime Minister, suspension of deliveries of products, materials, or difficulties in accessing equipment. The possibility to negotiate the terms of a contract with the contractor was an important solution introduced by the legislature in the Article 15(r)(4) of the anti crisis shield no. 2. If there is a risk that, for reasons beyond the contractor’s control, the obligation cannot be performed properly, then the following can be made: the change of the contract performance date, the temporary suspension of the contract, the change of the method of pursuing the delivery as well as conducting services or construction works. In addition, the contractor’s remuneration may be changed, but the remuneration increase may not exceed 50% of the value of the

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