Wadium w postępowaniach o zamówienia publiczne : Zmiana przepisów od 2021 r.

Wadium jest formą zabezpieczenia interesu prawnego zamawiającego. Ustanowienie go wzmacnia obowiązek zawarcia umowy przez wykonawcę, ponieważ gwarantuje zamawiającemu uzyskanie rekompensaty w razie wystąpienia przesłanek zatrzymania wadium. Stanowi ono również barierę finansową zapewniającą przystąpienie do przetargu jedynie podmiotom zainteresowanym zawarciem umowy i zdolnym do zrealizowania zamówienia. Od przyszłego roku zmienią się związane z tym przepisy.

Starting from 1st January 2021, the Act of 29th January 2004 Public Procurement Law will no longer be in force, and the Act of 11th September 2019 Public Procurement Law will come into force, which in a comprehensive way regulates the proceedings relat ed to public procurement. These proceedings may include the legal concept of a bid bond, defined as a set sum of money, or respective guarantee for its payment, being a prerequisite for a bidder to participate in the procurement proceedings. The reason for setting a bid bond by purchasers is to protect their interests. The notion of a bid bond was regulated in Article 45 and 46 of the currently binding act, and from the year 2021 the regulations related to bid bond will be set out in Articles 97 and 98 of the new Act. In order to facilitate the public procurement procedure, the Act of 2019 Public Procurement Law, to be in force soon, does not differentiate between an oblig atory and non-obligatory bid bond. The deadline for returning the bid bond, in other forms than monetary, has been clarified in the new law, too. New regulations have been also introduced with regard to the volume of bid bond, and the manner of its retaining. A single bid bond form was abandoned. In the new Public Procurement Law, a bid bond is non-obligatory only, and it lies with the purchasing party, whenever a bid bond is foreseen in the proceedings. If it is foreseen, the provision and retaining of a bid bond over the time of the proceeding is a prerequisite for entering and participating in the public procurement procedure. The obligation to provide a bid bond on time lies with the contractor, and it should be provided before the deadline for submitting the offer. It means that a bid bond can be foreseen only in those proceedings where the contractor submits the offer, which excludes a bid bond being set in free proceedings. The volume of bid bond depends, as set out in the Law on Public Procurement of 2019, on the value of the order. In the case of orders that are lower than the Union’s threshold, the volume of bid bond cannot exceed 1.5 percent of the purchase value, while in other cases – 3 percent. The reasons for returning the bid bond ex officio include: (1) expiry of the deadline until which the offer is binding; (2) concluding a public procurement offer; (3) an nulation of the proceeding, except for a situation when an appeal has not been set for annulation, or the deadline for appeal has not been exceeded. A bid bond repayment is possible if: (1) an offer has been withdrawn before the deadline for offers submission; (2) an offer has been rejected; (3) after the most beneficial offer has been selected – to the contractor whose offer has not been selected; (4) after the procedure has been annulled, except for cases when an appeal for annulation has not settled, or when the deadline for its submission has not expired. A bid bond should be returned no later than within seven days from the date of the circumstances listed above. A bid bond submitted in cash should be returned in cash, while non-monetary bid bonds – by pro viding the guarantor with a declaration of will about the bid bond release. A bid bond return is not possible if some reasons for its retaining exist, i.e.: (1) when the contracting party fails to provide appropriate documents or declarations required by the purchaser; (2) a consent for correcting mistakes in an offer has not been given, in the case of mistakes other than obvious spelling or calculation mistakes; (3) a refusal to sign a contract on public procurement; (4) a failure to provide the required guar antee to perform the contact by the contractor with whom the contract is concluded. Retention of a cash bid bond denotes that the money on their bank account becomes their ownership. In the case of a non-cash bid bond, a bid bond retention means that the guarantor demands the bid bond value to be aid.