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discrimination of SME’s in public procurement. Now the question is whether Europe is able to maintain the non discrimination position in this world competition. Mr Jérôme Grand d’Esnon presented the example of the United States, where the Small Business Act was adopted. According to this Act, the federal public purchasers are obliged to give 22% of the annual purchases to SME’s. In that case one can be sure that a certain amount of the public money goes to SME’s. That has, however, number of limits. The limit is when you put a threshold. The purchasers search the public procurement within that 22 %, and after that they don’t try to win a contract. That is why it’s not a good example to be followed by the European countries. First of all, Europe has an integration policy and does not need to use the positive discrimination in public procurement regulations. Second of all, the current directives would not allow this situation to occur. According to Article 2 of the Directive, the contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way. The SME’s may compete for a contract by dividing contracts into lots. Mr Jérôme Grand d’Esnon presented the examples of special measures for SME’s. In France, the awarding entities used to have free choice to decide whether to divide contracts into lots. Now it is, however, not mandatory, but it should be priority. If the awarding entity does not divide contract into lots, it must be justified (whether it has been done for technical or financial reasons). Also proportionality of requirements which provides that, the small economic operators cannot be discriminated against if they can fulfil the requirements of the awarding entity. The selection prohibited on references cannot be the reason for exclusion of SME in a contract award procedure as well. The purchasers may alone decide that a certain number of candidates competing for the contract are SME’s. Mr Jérôme Grand d’Esnon outlined also other examples of special measures and these are: a simplified candidate file, advances and instalments allowed by the purchasing authorities or paperless electronic procedures- commonly used by the SME’s. Mr Jérôme Grand d’Esnon found two legal discriminative solutions envisaged in the 2004 Directives acceptable with the common provisions of the Treaty like the possibility of positive discrimination with reference to the sheltered workshops or the use of environmental and social criteria in contract award procedure. Mr Jérôme Grand d’Esnon stressed that another important issue to be tackled nowadays by the European Union was the renegotiation of some provisions of the Agreement on Government Procurement of 1994. The current text of the GPA accepts the protective regulations for domestic SME’s in the well developed countries like the United States, Japan, Canada and South Korea. The renegotiation should allow European SME’s to compete for a contract in other countries worldwide. Mr Wojciech Hartung, Public Procurement Office, Poland ADVERTISING BUSINESS OPPORTUNITIES. PROVIDING ACCESS TO INFORMATION FOR ECONOMIC OPERATORS. Access to information is one of the principles of the EU law. It also enables the implementation of the principle of equal treatment of all the participants. 2
Mr Wojciech Hartung presented the recent amendment of the Public Procurement Law Poland. The amendment was adopted by the Parliament on the 13 th of April and will in few weeks come into force. The law introduces 2 main thresholds concerning the award of public contracts. 14.000 EUR is the threshold for application of the Public Procurement Law. The other threshold is based on the EU Directive. The contract award procedures below the EU threshold shall be governed by the standard forms defined by the regulation of the Chairman of the Council of Ministers of Poland. These forms are shorter and more simplified, containing less information than the EU standard forms based on the Regulation 2151/2003 of the European Commission. Depending on the value of contract, the notices are published in the Public Procurement Bulletin or the Official Journal of the EU. Where the contract value is more than 14 000 euro but less than EU thresholds, the contract notice is published in the Public Procurement Bulletin accessible via the website of the Public Procurement Portal (www.portal.uzp.gov.pl). Notices above the EU thresholds are published in the Official Journal of the EU. PPO portal is mainly dedicated to the public procurement notices. It contains all kind of public procurement notices for services, supplies and works. There is also possibility of publishing notices below 14 000 euro. In the Public Procurement Bulletin, the notices are published only electronically via the forms accessible on the Portal. The forms are fulfilled on-line. In order to fill in the form, the contracting authority is obliged to register for the first time and thus obtain login and password. The login and the password will be used by publishing any subsequent contract notice. The notice is published in the Public Procurement Bulletin once it is filled in and accepted by the contracting authority/entity. The notice is available for the Economic operators immediately after its publication in the Public Procurement Bulletin. There is a possibility to correct the content of the notice published in the Public Procurement Bulletin. However, it may not concern the description of the object of contract, criteria for the award of the contract, description of the conditions for participation in the procedure and description of the method used for the evaluation of the fulfillment of those conditions. The correction is sent to the President of the PPO who published it in the Public Procurement Bulletin. There are some mandatory obligations imposed on the contracting authority concerning the proof of publication of notice. The contracting authority/entity is obliged to prove that the notice has been published. Thus it is obliged to retain the proof of its publication. The information on its publication together with the number of the notice is sent to the e-mail address given in the notice by the contracting authority/entity. From the 1 st January 2007, the Public Procurement Bulletin is published only in the electronic version. Apart from publication in the Public Procurement Bulletin, there are some other obligatory forms of notice publication: in the publicly accessible place in the seat of the awarding entity, website of the awarding entity and national daily by contracts for works of 20 million euro and contracts for supplies and services of 10 million euro. 3
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