On February 19, 2013 provisions amending the Public Procurement Law Act dated November 19, 2012 will become effective (Dz. U. [Journal of Laws] of 2012, Item 1271). The new provisions will implement the provisions of the EU Directive – 2009/81/EC into the Polish legal order and they will largely relate to the procurement in the field of defense and security, for which a new, separate section 4a of the Act is intended. The new law does not provide for a preference clause for the EU business entities, which has been the subject of interest on the part of governments and entrepreneurs at the stage of adoption of the Directive, but it merely lays down consistent principles of tenders organization for such sensitive areas for the State as defense and security.
Exceptions excluding the application of the Act deserve special attention. These include in particular: “contracts which bear “confidential” or “strictly confidential” clause under separate provisions (Article 4, item 5), “contracts concerning the production of or trade in arms, munitions and war material under Article 346 of the Treaty on the Functioning of the European Union […] “(Article 4, item 5b).
Additionally, special arrangements have been provided for “the contracts in the field of defense and security” (Article 131a). Contracts for the supply of military equipment, including its parts, components or sub-assemblies, and also for construction works and services for specific military purposes are not subject to the Act where they are subject to “a special procedure under an international agreement to which Poland is a party, concluded with one or more non-member States, or agreements to be concluded at the ministerial level” (Article 4b, Section 1, item 1 et seq.) Article 2 contains important definitions – military equipment, sensitive equipment, critical construction works, etc. that specify these terms for the use of the above-mentioned exceptions.
Equally treated contracts in the fields of defense and security also deserve emphasis, which also indicates the possibility of exemptions also in case of contracts for the Police and Border Guards. Because Article 4, item 5b provides for the requirement of compliance with Article 346 of the Treaty on the Functioning of the European Union, there is a need to specify the general clause in the Regulation, namely the criteria for the existence of ‘the fundamental interests of national security’. Appropriate delegation under art. 4c for the Council of Ministers to issue the regulation in question came to light in the form of a project aimed for inter-departmental consultations . Unfortunately, in this project, the decision has been entrusted to the Council of Ministers, instead to the Ministry of National Defense or in some cases, potentially to the Ministry of the Interior.
One can observe apparent reluctance of the Ministry of National Defence to take decisions, especially controversial ones. It is beyond any doubt that the practice of tenders in the area of defense will be under close inspection of the leading States in the defense market in the European Union. One should expect a series of interventions, mostly on the forum of the European Commission, as well as lobbying and actions inspired the media targeted at government’s decisions which are detrimental to EU manufacturers. This perspective will certainly inhibit the willingness of the Council of Ministers to make decisions defending the Polish defense industry.
The majority of the Ministries will be against the proposals aimed to subject a specific tender to the procedure under Article 346 of the Treaty, at least because of the reluctance of acting against the Commission whose view on the need to fully respect the principle of free competition in defense procurement is well known. It would be unreasonable to expect from a Polish officer to act otherwise and argue that a given issue is a “core national security interest” unless he/she has a non-appealable court judgment so representing.
Unfortunately, after years of showing to the public that any initiative against the views of present and future rulers may result in criminal liability, such conduct is most rational. One would wish that as a result of inter-ministerial consultations, the Ministry of National Defense has come to the conclusion that the Ministry itself should take responsibility for making these decisions, or alternatively in controversial cases it should submit them to the Council of Ministers for approval. Thus, one has to question the words of the Prime Minister that the modernization of the Armed Forces will be mostly implemented by cooperation of the Polish defense industry with technology providers. Our industry is too weak to face the confrontation with more powerful ones without the State’s support, while indigenous defense industry is supported by its own State in the whole world.