most interesting rulings | In Principle

A two-stage competitive dialogue often extends the procurement procedure to many months. During that time, as a result of various circumstances, changes in the parties to a consortium may occur, often beyond the contractors’ control. In this situation, will the remaining contractors still be entitled to submit a bid, or should they be excluded from the procedure? In its ruling of 22 January 2021 (case no. KIO 3357/20), the National Appeal Chamber held that to avoid negative consequences for contractors, two key conditions must be met.

Does State Forests have the right of first refusal on the sale of a residential unit together with a share in a partly forested property? A surprising decision by the Wołomin District Court.

In the past, Polish courts took the position that a contractor whose bid was not selected due to a violation of the Public Procurement Law must first file an appeal with the National Appeal Chamber (and possibly a complaint with the state court against the chamber’s ruling), and only then could seek redress from the contracting authority. This discouraged contractors from pursuing claims. A recent resolution by the Supreme Court has changed this situation.

When establishing the conditions for participating in a contract award procedure, contracting authorities often face the dilemma of how to reflect the specific subject matter of the procurement without infringing the principle of proportionality. This task is even harder when the procurement involves specialised medical equipment, where improper servicing could put patients’ life or health at risk. Do such circumstances justify limiting the number of bidders seeking a contract? Yes, the National Appeal Chamber held in its ruling of 29 January 2021 (case no. KIO 3489/20).

Trade secrets are a sensitive aspect of public procurement proceedings. They limit the principle of openness of proceedings, but protect sensitive information about the contractor’s business. When granting or denying a request to keep certain information secret, the contracting authority should carefully assess the contractor’s arguments, to prevent abuse of this institution. Despite entry into force of the new Public Procurement Law, this issue is still alive, as evidenced by the recently published ruling of the National Appeal Chamber of 29 March 2021 (case no. KIO 720/21).

A typical bicycle has two wheels of equal size, handlebars, a frame, and a chain drive for the rear wheel. But do individual bicycle models deserve copyright protection? And if so, what factors determine whether they are granted such protection? These questions were addressed by the Court of Justice of the European Union in a judgment delivered on 11 June 2020.

Flawless performance of a public contract is very rare. Therefore, the case law has adopted the principle that contracting authorities may refuse the final handover only if there are material defects. But what is the nature of material defects, and how can the procedure for handover of works be properly defined in a public contract? These issues were recently considered by the National Appeal Chamber (KIO) in its ruling of 1 December 2020 (KIO 2965/20), which additionally took a stand on the issue of allegedly grossly excessive contractual penalties and limits on such penalties.

Municipal waste collection and transport is the subject of many in-house procurements in Poland. Art. 67(1)(12) of the Public Procurement Law provides one of the possible grounds for awarding such contracts, requiring the contracting authority to meet three conditions. But are there really only three? This issue arose in a case in which the National Appeal Chamber had to decide whether the contracting authority must also meet other, non-statutory conditions to properly award a sole-source contract.

Recently, the Supreme Court of Poland adopted an important resolution specifying the rules for running of the statute of limitations after a postponement of payment (creditor’s extension of the payment deadline). Under the resolution, if payment is postponed, the statute of limitations begins to run again from the new payment deadline. Thus, the view expressed by the Supreme Court allows the repayment of the debt to be divided into instalments along with postponement of the due date, and thus postponement of the beginning of the limitation period.

When valuing bids in a public procurement procedure as a lump sum, contractors may freely determine the value of individual parts of the contract. For the contracting authority, only the total value of the contract is relevant, and not the valuations of individual parts. But in every case the contractor should examine the documentation to determine whether the contracting authority has included any limitations in this respect. This is the guidance that can be drawn from the ruling by the National Appeal Chamber of 20 October 2020 (KIO 2101/20).

In December 2020, the European Court of Human Rights issued its judgment in Papageorgiou v Greece (application No. 44101/13), holding that despite his prior acquittal, the imposition of civil liability on a driver for causing an accident under the influence of alcohol did not violate the presumption of innocence. The case provides an opportunity to discuss how the outcome of criminal proceedings impacts drunk drivers’ liability for damages.

Fair competition and equal treatment of contractors are the main principles of awarding public contracts, and all actions taken by the contracting authority in preparing and conducting the procedure must comply with these principles. Nonetheless, procurement procedures often raise questions about how these principles should be applied in practice. Some doubts were recently dispelled by the National Appeal Chamber in its ruling of 15 October 2020 (case no. KIO 2104/20).