The appeal provisions of the Public Procurement Law need to be amended | In Principle

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The appeal provisions of the Public Procurement Law need to be amended

At a conference on 30 May 2023, the Polish Public Procurement Law Association presented a report with calls for legislative changes to the Public Procurement Law of 11 September 2019. The act has been in effect since the beginning of 2021, and the experience acquired over two and a half years has allowed practitioners to draw some conclusions and formulate nearly 30 calls for amendments to improve the procurement procedures in Poland. In this article we will analyse one of the proposals.

The members of the Public Procurement Law Association specialise in public procurement, public-private partnerships, and public works concessions. Thus in our day-to-day work we confront many problems generated by the new act. We discussed how they could be solved during the conference “Two years of the new Public Procurement Law: Analysis of experience, calls for amendments” in 2022, attended by public procurement institutions, contracting authorities and contractors. Then we developed these loose ideas into concrete solutions.

Our team took care of legal remedies. This issue forms the most extensive part of the report, although in this respect the act in effect since 2021 did not introduce many new solutions. And the report contains only key demands which all members of the association involved in the report supported.

Even within such a narrow group as public procurement lawyers, there is wide divergence on how the law is perceived. Each of us has different experiences, whether due to the cases we handle, our clients’ profile, or the type of issues we have faced. Thus the report includes some demands which nearly every practitioner will identify with, other demands not relevant to their practice, and some they disagree with.

Main concern: Lack of time limits for filing pleadings in appeals

In our opinion, from the point of view of organisation of the hearings at the appeal stage, the most important demand in the report is to introduce deadlines for submission of a written response to the appeal and the written procedural position of the appellant so that the parties can consider them a reasonable time before the hearing.

We believe that the deadline should be set as two business days before the scheduled hearing date. In practice, this would mean that even if pleadings were served just before midnight, the other parties would have had at least one full business day before the scheduled hearing to read them calmly and develop a method for addressing them at the hearing.

This solution would allow everyone to better prepare for the hearing, and to focus at the hearing only on the arguments not addressed in the pleadings, or responding to the pleadings.

In practice, introducing such a new deadline could lengthen appeals (although not necessarily, and by two days at most), but would raise the quality of consideration of issues on appeal.

Regardless of the location of the contracting authority or the contractor, all appeals in public procurement proceedings are heard by the National Appeal Chamber in Warsaw. On the eve of the hearing or the morning of the hearing date, many parties and counsel travel to Warsaw. And there is usually no more than two weeks between filing of the appeal and the hearing.

But it is unfortunately a common practice for parties to appeals to serve written procedural positions not only the night before the hearing, but even on the morning of, or to hand out pleadings in person in the hearing room. Then the opponent has no real opportunity to read the pleading, let alone prepare at least an oral response on the wing. Serving pleadings at the hearing has the added disadvantage of disrupting the proceeding. The panel must call a break for counsel to read the pleading, under time pressure and without substantive support to address the opponent’s arguments.

Speed yes, but not at the expense of quality

Procurement appeals in Poland are quick, and this speed is a strength. For this reason, in our report we did not propose to reduce the time to present evidence, or to cause parties to forfeit the right to present arguments orally at the hearing. If a party does not file a written position on time, it would no longer be allowed to do so, but could still raise these arguments orally at the hearing.

Nonetheless, we believe that introducing a deadline for filing written pleadings is a win/win solution. The parties would have clearer expectations for the hearing, where, after all, the fate of the contract is weighed. Right and equity should prevail—or at the very least, well-prepared arguments and not the cleverness of an adversary serving papers in the dead of night.

Report of the Public Procurement Law Association >>>

Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners