Pasiūlymo ir sutarties užtikrinimai

Wadium: pasiūlymo užstatas

Art. 97 ust. 1 states that the contracting authority may require contractors to provide wadium. It is a choice, not a default, and it must be declared in the specification — arts. 134 ust. 2 and 281 ust. 2 list wadium among the items an SWZ has to cover where the buyer requires it.

Art. 97 ust. 2 caps the amount at not more than 3% of the value of the contract. Note the base: it is the buyer's estimated value, not your price. Art. 97 ust. 3 applies the same ceiling proportionally where partial offers are permitted or the contract is divided into lots, so each lot carries its own capped figure.

Art. 97 ust. 5 fixes the timing. Wadium must be provided before the deadline for submitting offers and must remain in force continuously until the period for which offers are binding expires, subject to the exceptions in art. 98. A guarantee that expires with the original bid validity date, in a procedure that gets extended, is a live risk.

Art. 97 ust. 7 lists the permitted forms: cash, transferred to the account the buyer specifies; bank guarantees; insurance guarantees; and sureties granted by the entities referred to in art. 6b ust. 5 pkt 2 of the Act establishing the Polish Agency for Enterprise Development. Cash wadium is held by the buyer in a bank account.

That list is narrower than the one for performance security. A poręczenie bankowe — a bank surety, as distinct from a bank guarantee — appears in the art. 450 list for zabezpieczenie but not in the art. 97 list for wadium. Do not assume an instrument your bank offers for one will be accepted for the other.

Wadium gražinimas ir jo praradimas

Art. 98 ust. 1 requires the buyer to return wadium promptly, and no later than 7 days from expiry of the period for which offers are binding, conclusion of the contract, or annulment of the procedure, subject to exceptions where appeals are running.

Art. 98 ust. 2 provides for return on request within 7 days to a contractor that withdrew its offer before the deadline, whose offer was rejected, that was not selected, or that is affected by an annulled procedure. There is a sting: making that request dissolves the legal relationship with the buyer and, with it, your access to the remedies system. Never ask for wadium back while you are still considering an appeal.

Art. 98 ust. 6 sets out retention. The buyer keeps the wadium where the contractor, having been called on, fails to submit the required evidence so that its offer cannot be selected; where it refuses to sign the contract or fails to provide the required performance security; or where conclusion of the contract becomes impossible for reasons on the contractor's side.

Zabezpieczenie: sutarties vykdymo užtikrinimas

Art. 449 defines it. Ust. 1 establishes the term for that chapter; ust. 2 states that the security serves to cover claims arising from non-performance or improper performance of the contract; ust. 3 provides that it is furnished before the contract is concluded, unless the Act provides otherwise or the buyer sets a different date in the procurement documents.

Whether it is required at all is again the buyer's choice, declared in the specification — it appears in the conditional lists at art. 134 ust. 2 and art. 281 ust. 2.

Art. 452 governs the amount. The security is set at not more than 5% of the total price stated in the offer. It may go up to 10% where this is justified by the subject matter or by the risks in performance, and the buyer must describe that justification in the SWZ or the procurement documents. For contracts longer than a year, the security may be built up from deductions from payments for partial performance, with at least 30% paid at signing and the full amount in place by the midpoint of the term. Where the security period exceeds five years, cash covers the whole period while other forms must cover at least five years with an obligation to renew; a non-cash security not renewed within 30 days before expiry is converted to cash by the buyer drawing on it.

Art. 450 ust. 1 lists the forms at the contractor's choice: cash; bank sureties or sureties from a credit union; bank guarantees; insurance guarantees; and sureties from the PARP-listed entities. Ust. 2 adds, with the buyer's consent, promissory notes with a bank aval, a pledge on State Treasury or local-authority securities, and a registered pledge. Ust. 4 lets you apply cash wadium towards the security if you consent. Ust. 5 requires cash security to be held on an interest-bearing account and returned with interest, less account costs and bank commission.

Ką daryti dėl to

Read both figures out of the specification before you price. The 3% and 5% ceilings bind the buyer; they are not defaults, and buyers often set less.

Get guarantee wording checked against the specification, not against your bank's template — the validity has to survive an extension of the bid validity period, and the form has to be on the right statutory list.

Arrange the performance security while evaluation is still running, not after the award letter: it is due before signing, and failing to produce it costs you the wadium as well as the contract.

Related terms

• SWZ — Lenkijos pirkimo specifikacija
• Tryb podstawowy — Lenkijos pagrindinė procedūra
• Lenkijos viešųjų pirkimų įstatymas (PZP)
• Krajowa Izba Odwoławcza (KIO)

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