"Expansion of the AMMS system with modules enabling electronic medical record keeping with author's supervision of His, LIS systems, including support and technical assistance for the HIS database engine"

Pursuant to Article 214(1)(1)(a) and (b) of the Public Procurement Law, the Contracting Authority may award a contract without prior publication if: 1) supplies, services, or construction works can be provided only by one contractor for reasons of: a. technical nature of an objective character, b. related to the protection of exclusive rights arising from separate provisions - if there is no reasonable alternative or substitute solution, and the lack of competition is not the result of intentional narrowing of the procurement parameters. Pursuant to Article 74(4)(2) of the Act of February 4, 1994, on Copyright and Related Rights (hereinafter: the Act), "moral rights to a computer program, subject to the provisions, include the right to translate, adapt, modify the layout or any other changes to the computer program, while respecting the rights of the person who made these changes." Factual basis for the use of the negotiated procedure: The subject of this order is the expansion of the system (AMMS) with modules enabling electronic medical record keeping with author's supervision of His, LIS systems, including support and technical assistance for the HIS database engine. The AMMS system is proprietary software of ASSECO Poland S.A., which the Contracting Authority has owned and used since 2003. This system is the primary IT system used to perform tasks in the healthcare facility; it is a key and critical system. Over the years, the AMMS system has been adapted to the needs of the Contracting Authority, and the current need for its modernization results from the natural progress of IT techniques, cybersecurity procedures, and system requirements related to the digitalization reform of healthcare. Crucially, Asseco Poland S.A. holds exclusive copyrights to the AMMS system. Pursuant to Article 74(4)(2) of the Act of February 4, 1994, on Copyright and Related Rights, moral rights to a computer program, subject to the provisions, include the right to translate, adapt, modify the layout or any other changes to the computer program, while respecting the rights of the person who made these changes. This means that only the author of the software used by the Contracting Authority (ASSECO Poland S.A.) has the exclusive right to make modifications, changes, and expand its own software with additional functionalities. The Contracting Authority does not hold moral rights to this system; only ASSECO Poland S.A. has access to the source codes. Consequently, implementing new functionalities of the AMMS IT system by contractors other than the manufacturer is not only difficult but, due to its nature, impossible for objective technical reasons. At the same time, there is no reasonable alternative or substitute solution on the domestic or European market to achieve the objectives of this procedure without excessive effort and resources and within a comparable timeframe. In this factual and legal situation, only one Contractor can carry out the subject of the order and ensure system consistency and full data migration, which results from technical reasons and is related to the protection of exclusive rights. This situation is permanent, insurmountable, and objective.