One of the fundamental practical issues under the Public Procurement Law Act of 11 September 2019 (the “PPL Act”) is whether a contracting authority is obliged to define participation criteria (warunki udziału w postępowaniu) for a procurement procedure, or whether this is solely at their discretion. This question is of significant importance both to those responsible for drafting tender documentation on the contracting authority’s side and to economic operators (contractors) bidding for public contracts.

Legal basis

The answer to this question follows directly from Article 57(2) of the PPL Act, which provides that a contract may be sought by contractors who meet the participation criteria, “provided that such criteria have been defined by the contracting authority.” The use of the term “provided that” (o ile) unequivocally confirms that defining participation criteria is a discretionary right, not a mandatory obligation of the contracting authority.

This position is consistently supported by the case law of the National Appeals Chamber (KIO). For instance, in its judgment of 2 February 2024 (case file KIO 97/24), the Chamber stated: “In light of the PPL Act regulations, the contracting authority has the right, but not the obligation, to formulate participation criteria. This stems directly from Article 57(2) of the PPL Act […] the Act leaves the decision to the contracting authority as to whether or not to define participation criteria in a given procedure.”

However, should the contracting authority decide to set such criteria, they are obliged to define them in a manner that is proportionate to the subject matter of the contract and allows for an assessment of the contractor’s capacity to perform the contract properly. These criteria should, in particular, be defined by specifying the minimum levels of capacity required of the contractor (Article 112(1) of the PPL Act).

The contracting authority’s discretion in shaping participation criteria is therefore exceptionally broad – since the Act allows for the total omission of such criteria, it must be considered permissible to define them in a way that allows the widest possible range of contractors to participate in the procedure (KIO judgment of 31 October 2023, case file KIO 3054/23).

The method of defining participation criteria specified in Article 112(1) of the PPL Act should be interpreted primarily as a limitation against establishing overly rigorous standards. The legislator has explicitly indicated that participation criteria (if defined at all) should be based on minimum capacity levels sufficient for the proper execution of the contract. If bidders possess capacities exceeding these minimum levels, this can naturally be reflected in the tender evaluation criteria.

Burden of proof on the contractor

While the scope, form, and method of defining participation criteria generally remain at the contracting authority’s discretion, the burden of proving specific qualifications lies with the contractor seeking the contract. For this reason, KIO case law emphasises that participation criteria must be formulated clearly and precisely. In its judgment of 24 June 2020 (case file KIO 1177/20), the Chamber noted: “The contracting authority has a duty to ensure that the criteria it sets allow for the selection of a contractor that provides a guarantee of proper contract performance […] the contracting authority should do this in a clear and precise manner so that contractors […] have no difficulty in understanding the contracting authority’s requirements.”

As indicated, the specific “burden of proof” regarding the fulfilment of participation criteria rests with the contractor. The contractor is thus required to demonstrate that they are not subject to exclusion from the procedure (KIO judgment of 27 March 2019, case file KIO 420/19). However, for a contractor to effectively meet this “obligation,” the prior, unambiguous definition of participation criteria by the contracting authority is essential.

Impact of not defining participation criteria

The issues described above raise a practical question: can a contractor with no experience or industry knowledge, but with sufficient financial backing, effectively bid for a public contract, often worth hundreds of thousands of zlotys?

The answer is not straightforward. On one hand, if the contracting authority has not defined criteria regarding technical or professional capacity, there is formally nothing to prevent such a contractor from submitting a bid and being awarded the contract. On the other hand, the PPL Act framework provides several safeguards:

1. Principle of Efficiency: Under Article 17 of the PPL Act, the contracting authority is obliged to award contracts in a manner that ensures the best results. A conscious waiver of experience-related criteria for a complex procurement may be assessed as a breach of this principle.
2. Guarantee of Performance: KIO consistently recalls that the purpose of participation criteria is to select a contractor that provides a guarantee of proper contract performance. A contracting authority that completely abandons the verification of a contractor’s competence acts contrary to this objective.
3. Evaluation vs. Participation: Capacities exceeding the minimum level sufficient for contract execution should be the subject of tender evaluation criteria, not participation criteria. This means that experience and industry expertise can (and should) be rewarded with points, even if their absence does not formally disqualify the contractor from participating. A correctly structured procedure should therefore combine (minimum) participation criteria with well-thought-out evaluation criteria so that the most competent contractors can gain a competitive advantage.

In summary, the absence of defined participation criteria should not be treated as a “licence” to select any arbitrary bidder. The lack of an obligation to set such criteria does not absolve the contracting authority of responsibility for selecting a contractor capable of performing the contract. Simultaneously, it must be emphasised that if participation criteria are defined, the burden of proving that they are met and that there are no grounds for exclusion rests entirely on the contractor.