Advising in tender proceedings – success before the Regional Court in Warsaw in a complaint against the ruling of the NAC (National Appeals Chamber) on a tender worth nearly PLN 200 million

A Client who is one of the leading entrepreneurs in the infrastructure industry in the Sub-Carpathian region, competing in a tender for the execution of a public contract with a substantial value (nearly PLN 200 million), asked the Law Firm to represent him in a case concerning his exclusion from the tender procedure.

The issue concerned the answer to a question in the JEDZ document stating: “Has the contractor been in a situation in which a prior public procurement contract, a prior contract with a contracting entity, or a prior concession contract was terminated prematurely, or in which damages or other comparable sanctions were imposed in connection with that prior contract?”. The Client, to the best of its belief and knowledge, answered negative.

The contracting authority, after analyzing the entire bid and the documents submitted in the course of the procedure, concluded that the Client’s bid was the most advantageous. A competing contractor, who also competed in this tender, appealed the contracting authority’s decision to the President of the NAC, pointing out that the Client had made a false statement in the JEDZ document regarding contractual penalties accrued in connection with the implementation of a previous public investment, which formed the basis for its exclusion. In support of its claims, this contractor cited incomplete, often unsigned documents, which showed that the previous investor had initiated complaint proceedings regarding the accrual of contractual penalties, citing legal grounds from which it believed it could claim contractual penalties. The Client, as well as the ordering party, obtained additional statements from the previous investor in the course of the appeal proceedings, which showed that the accrual of contractual penalties had ultimately not occurred. Despite this, the NAC upheld the appeal in part, i.e. with regard to the charge of misleading the ordering party, finding that the Client had indeed been charged contractual penalties under the previous investment. The Law Firm’s lawyers filed a complaint against the NAC’s verdict in the part upholding the appeal, alleging, among other things, violations of procedural regulations regarding the evaluation of evidence and the establishment of facts. The Warsaw Regional Court shared the argumentation of the Law Firm’s lawyers, thus confirming that the Client was not charged with any contractual penalties in connection with the previous investment, and thus made a truthful statement in the JEDZ and did not mislead the ordering party.

Thanks to the above judgment of the Regional Court, the Client will be able to perform a public task worth nearly PLN 200 million, as well as acquire valuable experience and references entitling it to compete in public tenders of even greater value.

Support and assistance in tender proceedings is our specialty, which, thanks to our extensive experience, we can successfully carry out.