Witold Slawinski and Adriana Gostepska successfully represented a client – a well-known general contractor of numerous investments in the construction industry – in two appeal proceedings before the National Appeals Chamber in Warsaw.
In the first of the appeal proceedings we represented the client acting as an adjoining party to the appeal proceedings on the side of the ordering party, defending the selection of its offer as the most attractive one made by the ordering party in the course of the public procurement proceedings. The selection of the client’s bid was appealed by a contractor whose bid came second in the ranking of bids.
In its verdict issued in case KIO 671/23, the National Appeals Chamber dismissed the appeal and fully shared the argumentation of the RKKW’s lawyers demonstrating its unfoundedness. In particular, the Chamber leaned against the issue concerning the client’s fulfilment of the condition for participation in the proceedings specified by the ordering party in the context of the phrase “underground garage hall” used therein.
The Chamber, following the view of the RKKW’s lawyers, confirmed that when interpreting the aforementioned phrase, in the part concerning “underground”, reference should have been made to the currently applicable definition of “underground floor” within the meaning of § 3(17) of the Regulation of the Minister of Infrastructure of 12 April 2002 on technical conditions to be met by buildings and their situation. Contrary to the appellant’s position, the definition of an underground floor previously in force under the aforementioned Regulation was not relevant to the assessment of the client’s compliance with the condition for participation in the proceedings. Consequently, in order to demonstrate the fulfilment of the condition for participation in the proceedings, the client was entitled to rely on experience in the construction of an underground garage taking into account the definition currently in force, even in a situation where, in light of the definition previously in force, the garage floor in question was not considered to be underground.
In the second of the appeal proceedings, initiated by an appeal on behalf of the client, the Chamber shared the allegations raised by the RKKW’s lawyers concerning the incorrect selection of the offer of the acceding party on the side of the ordering party as the most favourable one and the contractor’s failure to prove that it fulfilled the condition for participation in the proceedings. In its judgment KIO 675/23, the Chamber shared the appellant’s position that on the basis of the information contained in the list of individuals submitted by a firm competing with the RKKW’s client, it was not possible to assess whether the acceding party had demonstrated fulfilment of the condition. Accordingly, the Chamber ordered the contracting authority – in accordance with the appellant’s request – to call upon the acceding firm to supplement the list of individuals with the information necessary to assess whether the acceding firm fulfilled the condition. Failure to do so resulted in irregularities in the selection of the offer.