The current state of the epidemic (SARS-CoV-2), in the opinion of the Managing Authority, can be qualified as a force majeure, i.e. an exceptional situation not resulting from reasons attributable to the contracting authority, which he could not foreseen. Therefore, it is possible to exclude the application of the principle of competitiveness in the framework of contracts necessary to counteract the effects of COVID-19 due to the required immediate performance of the contract or the need for an immediate award.
Considering the above, it is possible not to apply the principle of competitiveness when awarding contracts in the following cases described:
- for PBU1/LIPs - in the Programme Manual I, chapter 184.108.40.206, subchapter 1.1 point 6
- for micro-projects - in Appendix 5a to the Programme Manual 2nd Call for Proposals, chapter 1.1, point 6.
d) in the case of contracts to which the principle of competitiveness applies, where the deadlines referred to in Section 1.2 of this Sub-Chapter cannot be kept due to the urgent need to award the contract which could not have been foreseen, such urgent need have not resulted from any action or negligence of the contracting authority;
e) in the case of contracts to which the principle of competitiveness applies, where the contract must be performed immediately and the deadlines referred to in Section 1.2 of this Sub-Chapter cannot be met due to the extraordinary situation which could not have been foreseen (e.g. natural disasters, catastrophes, breakdowns, unexpected accidents), and, such extraordinary situation have not resulted from any action or negligence of the contracting authority.
In conclusion, beneficiaries and applicants may waive the application of the principle of competitiveness when awarding contracts necessary to counter the effects of COVID-19. The fulfilment of the above provisions from point 6 d and e, however, they should justify in writing. Specific conditions, in case of doubt, should be interpreted based on the interpretation and case-law issued in relation to the relevant provisions of the Public Procurement Law, i.e. art. 62 and art. 67.
Any derogation from the rules adopted for the implementation of EU funds, as in the discussed situation, departing from the principle of competitiveness, should be justified by the occurrence of force majeure, which currently is a pandemic. Therefore, the use of this type of solutions must be preceded by a thorough analysis of each case.
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