Entitlement only

From the point of view of the contracting authority, the bid bond is to ensure that the contractor will sign the contract on the terms specified in the tender procedure and will provide a performance bond if its bid is selected. The provisions that required the contracting authority to demand a bid bond in the case of procedures with a value equal to or higher than the EU thresholds no longer apply. Currently, it is only the contracting authority’s right.

However, if the contracting authority decides to use the institution of a bid bond, it is obliged to comply with the provisions of the Act on the bid bond, including the amount of the bid bond, its form and return rules.

The amount of the deposit

The current regulations establish the maximum value of the bid bond. In the case of contracts with a value equal to or exceeding the EU thresholds, the amount is not more than 3% of the contract value, and in domestic procedures it is not more than 1.5% of the contract value. In a situation where the contracting authority allows partial tenders or awards a contract in parts, the amount of the bid bond is specified separately for each part of the contract. The Ordering Party has the right to demand a deposit only in relation to individual parts of the order.

Due date

Contractors are obliged to pay the bid bond before the deadline for submission of tenders, and the contracting authority may not impose an earlier date for the payment of the bid bond. The deposit does not have to be submitted simultaneously with the offer.

Form of deposit payment

An extremely important issue for both contracting authorities and contractors is the form of paying the bid bond. Compared to the previous act, the forms in which the bid bond may be paid have been limited. Currently, it is not allowed to provide a bid bond in the form of a bank guarantee or a guarantee of a cooperative savings and credit union. The deposit may be made either by paying a specific sum of money or by establishing security for its payment in the form of a bank guarantee, insurance guarantee or in the form of a surety granted by the entities referred to in Art. 6b sec. 5 point 2 of the Act on the establishment of the Polish Agency for Enterprise Development.

The importance of the decision to request a bid bond

The requirement to pay a bid bond is important from the contracting authority’s point of view, but it does not mean that a bid bond must be required in every procedure. Before making a decision on this matter, contracting authorities should take into account, first of all, the nature of the subject of the contract, the contractors’ market and the serious consequences of failure to pay the bid bond by contractors in the form of rejection of the offer. In the case of low-value contracts, where the contracting authority knows the contractors’ market, waiving the requirement to pay a bid bond may bring more benefits, e.g. in the form of greater interest among contractors in participating in the procedure.

In the next part of the series: about the division of the order into parts.