What is the scope of the application of the Civil Code provisions in public procurement proceedings?

In September 2024, the District Court in Warsaw – Public Procurement Court (the Court) issued a ruling with reference number XXIII Zs 115/24, addressing an interesting issue regarding the scope of the application of the Civil Code provisions in public procurement proceedings.

According to the Court, due to the content of Article 8(1) of the Public Procurement Act (PPA), the National Appeals Chamber (NAC) is not authorized to evaluate a tender submitted in a public procurement procedure under the provisions of Article 66 of the Civil Code. In this case, NAC ignored the final part of the aforementioned provision, namely Article 8(1) of the PPA, which states that the application of the Civil Code provisions is only possible when the PPA provisions do not provide otherwise. Furthermore, regarding the form of the tender, the PPA provisions have separate (from the Civil Code) regulations, which is clearly stated in Article 63 of the PPA.

Therefore, the Court concluded that NAC violated the aforementioned material law provisions by deciding the case based on Article 66 of the Civil Code while ignoring Article 63 of the PPA. NAC ignored the mandatory provision of Article 63(1) of the PPA, which requires the submission of the tender in electronic form. The Court emphasized that the provisions of the PPA constitute lex specialis in relation to the general rules of contract formation under the Civil Code, and as such, they take precedence over the application in public procurement proceedings. NAC incorrectly assumed that an unsigned tender form could be substituted by extracting its data from other documents. However, the other documents referenced by NAC (such as power of attorney, price form, European Single Procurement Document (ESPD), and statement under Article 117(4) of the PPA) are unsuitable for this purpose, as their nature and purpose are completely different from identifying the subject of the procurement. Thus, due to the submission of an unsigned tender by the contractor, which was an irremediable mistake, the contracting authority rightly rejected the tender based on Article 226(1)(3) in connection with Article 63(1) of the PPA.