Return of bid security at the request of the supplier

New regulations in the Public Procurement Law give suppliers the possibility to recover the bid security even before the end of the procedure, but the decision to submit an application has its consequences.

When can a supplier apply for a refund of the bid security?

According to Article 98 sec. 2 of the PZP act, a supplier may apply for a refund of the bid security if:

1. Withdrew the offer before the offer submission deadline
2. His bid was rejected
3. The buyer has selected the most advantageous bid, but it is not the supplier's
4. The procedure was annulled, and the deadline for filing an appeal has not yet passed or the appeal has not been decided by the KIO

The buyer has an obligation to consider such an application and, if the conditions are met, refund the bid security within 7 days.

What are the consequences of submitting an application?

Submitting an application dissolves the legal relationship between the supplier and the buyer. What does this mean?

• The supplier loses the right to use legal protection measures, including the right to file an appeal
• example: if the supplier submits an application for the refund of bid security after its offer has been rejected, it will not be able to effectively challenge this decision later

How to submit the application correctly?

• the application must be signed by a person authorized to represent the supplier
• should be sent using the electronic communication means indicated in the procurement documents

The supplier should make sure that one of the grounds under Article 98(2) of the PZP applies; otherwise, the buyer may refuse to return the bid security.

When will the buyer not refund the bid security?

• when none of the grounds from Art. 98 sec. 2 PZP apply
• when the circumstances of Art. 98(6) of the PZP occur, i.e. grounds for retaining bid security (e.g., failure to sign a contract)

Form of bid security return

• monetary bid security: by bank transfer, with interest, reduced by bank costs
• non-monetary bid security (e.g., guarantee): by a declaration releasing the guarantor or surety

Summary

Submitting a request for the return of bid security is a privilege, but also a risk: the supplier 'withdraws' from further participation in the procedure. It is therefore worth considering whether it is worth exercising this right.