Subject: Access of private postal operators to the provision of services to public entities
On 7 October 2013 a panel of three members of the National Appeal Chamber decided (file ref.: KIO 2184/13) that the inclusion in the terms of reference of a requirement for the proof of posting a registered letter with advice of delivery to have the effect of an official document must be considered unlawful.
In accordance with the position taken by KIO, in proceedings for the award of a public contract for postal services no court or public prosecution service can require from the tenders that the proof of registration and notice of receipt should be issued with the official effect of the postal stamp date. In the current legal situation, the above is the sole entitlement of the public operator Poczta Polska S.A. (Polish Post).
As assessed by KIO, the previous practice of public entities conducting procedures for the award of public contracts for postal services limited competition in postal services by restricting access for private operators to the provision of postal services to public entities. Thus, the privileged position of Poczta Polska S.A. in previous tenders violated the principal rules for conducting public procurement procedures – in a manner ensuring the maintenance of competition and equal treatment of contractors under Article 7 of the act of 29 January 2004 – Public Procurement Law (Journal of Laws 2013, Item 907, as amended). In the opinion of KIO, there is no interest of public entities justifying protection in the form of introducing such a condition for participation in the procedure and performance of a public contract as can only be fulfilled by the public operator. The mere fact of the provision of postal services to public entities does not sufficiently justify restricting competitiveness between tenderers.
It must be emphasised that the decision in question constitutes another possible contribution to the limitation of the position of the public operator, Poczta Polska S.A., on the market in postal services, particularly with regard to the supply of services to public entities. Recently it has been increasingly pointed out that it is necessary to introduce a legal possibility to post official letters also through private operators, at the same time meeting the applicable time limits for submission. So far, the legislator has only decided to make such an amendment to the Criminal Procedure Code (CPC). In accordance with the new wording of Article 124 of the CPC, as introduced by the act of 27 September 2013 amending the act – Criminal Procedure Code and certain other acts, the observation of the time limit for the submission of an official letter will be determined by the date of post registration at an establishment of an operator delivering correspondence within the European Union. Such amendments have been made to no other legislative acts regulating relevant procedures.
The above only confirms the changes observed on the Polish market in postal services, as reflected in the commented judgement of KIO. Although the decision issued may start a new line of case-law related to proceedings concerning the provision of postal services to public entities, it must be remembered that in Poland, as a rule, precedents are no source of binding law. Therefore, at this point it is difficult to determine whether this judgement finally ends the ‘monopoly’ of Poczta Polska S.A. for the supply of postal services to public entities, but it does mean progress in relation to the previous practice and it may consequently facilitate wider access for private operators to the market in postal services with regard to the provision of services to public entities.