The provisions of the new public procurement law, in force since 1 January 2021, introduced a number of modifications to the institution of the design contest, aimed at improving it and making it more widely used by contracting authorities. The essence of the design contest remained unchanged. It is worth recalling that in accordance with the statutory definition, a design contest is a special form of a public promise, in which the contracting authority, by means of a public announcement, promises a reward for the execution and transfer of the right to the design contest work selected by the jury. It is important to note that a design contest is not a public procurement procedure, but a public promise of a prize, which may include, among other things, inviting the author of the work selected in a design contestto negotiate in single source procurement or to negotiate without an announcement.
The contracting authority can organise a design contest in order to select a creative work, concerning in particular spatial planning, urban design, architectural design, architectural and construction design, data processing, IT design, and an innovative project. The presented catalogue is not closed, but it makes it easier to specify the contracts to which the design contest may apply. A novelty is the addition to the catalogue of “IT design” and “innovative project”. The most important thing is that the design contest is held in order to select a work of creative character, thus having the character of a work in the understanding of the copyright law, to which the participant who submitted the selected work will transfer the author’s economic rights.
Unlike the previous act, which provided for the optional nature of the design contest, the current regulations introduced the obligatory principle, in a situation where the contracting authority intends to award a contract for architectural design or architectural and construction design services. There are three exceptions to this rule. There is no obligation to hold a design contest if the contracting authority intends to award a contract for architectural design services or architectural and construction design services that has a negotiated element, i.e. in the form of negotiations with announcement, competitive dialogue, negotiations without announcement or single source procurement. There is also no need to hold a design contest for contracts of this type with values lower than the so-called EU thresholds – here it is worth noting that the value refers to design services, not the planned construction work (as the law stands, depending on the type of contracting authority, it is the equivalent of EUR 139,000 or EUR 214,000, i.e. PLN 593,433 or PLN 913,630). Moreover, a design contest does not have to be held if the subject of the procurement is a linear object within the meaning of the construction law – for example, a road construction project is such a procurement. It does not require creative solutions, and waiving the requirement for a design contest seems fully justified, particularly in the context of the length of potential proceedings.
The award in a design contest is obligatory. It is a pecuniary or material prize awarded to the author(s) of the selected entries, or an invitation to the author(s) of the selected entries to negotiations with a view to providing a service based on the selected entry, or such an invitation along with a pecuniary or material prize. Under the previous act, the reward in the form of an invitation to negotiations could only lead to the detailed elaboration of a design contest entry, so the introduced change should protect against a situation in which the execution of a design services contract would be performed by an entity other than the winner of the design contest.
Another novelty introduced are two types of design contest procedures: an open design contest and a restricted design contest, in which, after verification of the subject of the design contest, only the participants invited to submit entries may submit entries.
The staged nature of design contests has been retained. In a two-stage design contest, in the first stage, studies complying with the requirements laid down in the design contest regulations are selected. In the second stage, the jury evaluates the entries based on the studies submitted in the first stage, using the criteria specified in the design contest regulations. In a two-stage design contest, the Contracting Authority may also limit the number of participants who will be invited to the second stage of the design contest by applying all or some of the criteria for the evaluation of the entries as specified in the design contest Rules to the study designs.
A very important practical innovation is the possibility of inviting to negotiations, and thus concluding an agreement, with the participant whose entry received the second highest score. Such possibility can be provided for in the Rules and Regulations of the design contest in the event that negotiations conducted in the mode of single source procurement with the author of the selected entry do not lead to the conclusion of a public procurement agreement.
The provisions of the new act also introduced the limitation of the publicity of those design contest entries or stage studies, which were not awarded.
The above principles are the basic rules according to which a design contest should be conducted. Moreover, just as under the previous regulations, the contracting authority organizes the design contest on the basis of the rules and regulations, which contain detailed principles of the design contest, including the rights and obligations of the design contest participants. The provisions of the regulations are binding not only for the design contest participants, but also for the contracting authority, which has limited possibilities of making changes. The act indicates the minimum scope of the regulations, which includes a description of the subject of the design contest, the detailed procedure of the design contest, requirements for participants, the composition of the jury, and legal protection measures. A thorough familiarisation with the regulations is crucial for any possible participation in the design contest procedure. Also from the contracting authority’s point of view, it is extremely important to properly prepare the regulations, so that they meet the requirements of the Act and do not leave any doubts in the interpretation of their provisions. It is worth mentioning that, among other things, the recommendations of the president of the Public Procurement Office are prepared for this purpose with the participation of entities bringing together entrepreneurs active in the field of construction and architecture. This document, once established, may constitute useful guidelines for the ordering parties and interpretative guidelines for the participants. Draft available here: https://www.uzp.gov.pl/strona-glowna/slider-aktualnosci/konkurs-po-nowemu-konsultacje-projektu-rekomendacji/konkurs-po-nowemu-konsultacje-projektu-rekomendacji.
It is worth reminding that the jury, which makes the evaluations, consists of at least three persons appointed by the contracting authority, whodo not have to be its employees, should have the knowledge and experience to evaluate the submitted entries, and if specific provisions require that they have the qualifications to develop a design contest entry, at least 1/3 of the jury members, including the chairman, should have the required qualifications.
It should also be remembered that there are legal remedies in contests, which should be specified in the rules of procedure. The legal remedies are available to design contest participants, if they have or had an interest in obtaining a prize in a design contest and suffered or may suffer a loss as a result of an infringement of the Act by the ordering party.
To sum up, the changes introduced by the new public procurement law are not only cosmetic and systematic. It seems that conclusions have been drawn from the design contests held and the problems that have arisen there. Moreover, by making design contests obligatory to a certain extent, the legislator aims to increase their role, which is already visible in the practice of awarding contracts, particularly for architectural services.
