Selling to the Government

Legal requirements are in place for selling to the host government, including whether the country or economy is a party to the WTO Agreement on Government Procurement or a party to a free trade agreement (FTA) with the United States that contains commitments on government procurement.

Information regarding public procurement regulations and public tenders in Poland is available via the Office of Public Procurement  web page. However, it should be noted that only a handful of relevant resources are available in English.

The Armaments Agency (formerly Armaments Inspectorate) handles Ministry of Defense procurements. Comprehensive information about military procurement laws and regulations is provided on the Armaments Agency website. Note that on-line resources are only available in Polish.

Unlimited tendering is the preferred method in Poland, and participation is open to all those who are legally, technically, and financially able to perform the contract (including foreign companies). 

U.S. companies bidding on foreign government tenders may also qualify for U.S. Government advocacy. Within the U.S. Commerce Department’s International Trade Administration, the Advocacy Center coordinates U.S. Government interagency advocacy efforts on behalf of U.S. exporters in competition with foreign firms in foreign government projects or procurement opportunities. The Advocacy Center works closely with our network of the U.S. Commercial Service worldwide and inter-agency partners to ensure that exporters of U.S. products and services have the best possible chance of winning government contracts. Advocacy assistance can take many forms but often involves the U.S. Embassy or other U.S. Government agency officials expressing support for the U.S. exporters directly to the foreign government. Consult the Advocacy Center’s program web page on trade.gov for additional information.

Government procurement in Europe is governed by both international obligations under the WTO Government Procurement Agreement (GPA) and by EU-wide legislation under the EU Public Procurement Directives. U.S.-based companies can bid on public tenders covered by the GPA, while European subsidiaries of U.S. companies may bid on all public procurement contracts covered by the EU Directives in the European Union.

Government procurement in Europe is governed by international obligations under the WTO Government Procurement Agreement (GPA) and EU-wide legislation under the EU Public Procurement Directives. U.S.-based companies can bid on public tenders covered by the GPA, while European subsidiaries of United States companies may bid on all public procurement contracts covered by EU directives, as implemented through national legislation. 

All public procurement procedures in the European Union are carried out based on national rules. For higher value contracts, these rules are based on general EU public procurement rules. The value limits, or thresholds, for EU rules are used depending on the purchase and who is making the purchase. These thresholds are revised regularly, and the amounts adjusted slightly. The limits are 140,000 euro for most types of services and supplies purchased by central government authorities, and 5,382,000 euro for construction contracts. For lower value tenders, only national public procurement rules apply, but the general European Union principles of transparency and equal treatment should be respected. 

The four relevant EU directives on public procurement are:
•    Directive 2014/24/EU on the coordination of procedures for the award of public works contracts, public supply contracts, and public service contracts applies to the general sector.
•    Directive 2014/25/EU coordinates the procurement procedures of entities operating in the water, energy, transport, and postal services sectors.
•    Directive 2009/81/EC on defense and sensi¬tive security pro¬cure¬ment. This directive sets European Union rules for the pro¬cure¬ment of arms, muni¬tions, and war material (plus related works and ser-vices) for defense pur¬poses, but also for the procurement of sensi¬tive supp¬lies, works and ser¬vices for non-mili¬tary security pur¬poses.
•    Directive 2014/23/EU on the award of concession contracts. A concession contract (either for the delivery of works or services) is conducted between a public authority and a private enterprise that gives the right to the company to build infrastructure and operate businesses that would normally fall within the jurisdiction of the public authority (e.g., highways).

In addition, the European Union has “remedies” directives imposing common standards for all Member States to abide by in case bidders identify discriminatory public procurement practices.
Electronic invoicing (e-invoicing) was introduced in 2018, based on the requirement set forth in Directive 2014/55/EU. The Directive makes the receipt and processing of electronic invoices in public procurement obligatory. Standards for e-invoicing are being developed by the European Committee for Standardization (CEN). 

There are restrictions for United States suppliers in the utilities sector across the European Union, both in the EU Utilities Directive and in coverage of the GPA. Article 85 of Directive 2014/25 allows European Union contracting authorities to either reject non-EU bids where the proportion of goods originating in non-European Union countries exceeds fifty percent or give preference to the EU bid if prices are equivalent (within a three percent margin). Moreover, the Directive allows EU contracting authorities to retain the right to suspend or restrict the award of service contracts to undertakings in third countries where no reciprocal access is granted. 
There are also restrictions in the coverage of the GPA that apply specifically to U.S.-based companies. United States companies are not allowed to bid on works and services contracts procured by sub-central public contracting authorities in the water, airport services, urban transport and railways, and dredging services and procurement related to shipbuilding sector and sub-sectors. 

The European Union has shifted the region’s economic policy vis-à-vis the People’s Republic of China to give the Commission greater authority to address negative impacts resulting from that government’s practice of subsidizing investments made by state-owned enterprises. The activity could take the form of an acquisition or other investment that displaces an established European business or industry. 

To ensure established enterprises and industries retain a fair opportunity to compete, the European Commission proposed that the European Parliament and the Council of the European Union adopt a regulation on foreign subsidies that distort the internal market. This regulation, if adopted, will give the Commission the power to investigate investments and other activity when there is evidence that they have had a distortive effect on free-market competition in the region. 

Furthermore, the proposed legislation will empower the Commission to take remedial action against an offending entity. These actions include prohibiting the entity from participating in tendering for public procurement contracts or blocking the investment. The U.S. Government is carefully monitoring these negotiations because the proposed legislation applies to all state-owned enterprises globally. 
Key Link: EU Tenders Database (for European Public Procurement)