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The success of SDZLEGAL SCHINDHELM in the proceedings before The National Appeal Chamber – precedential verdict on supplementary procurement in services

The General Directorate for National Roads and Motorways has decided to award a procurement – using an uncompetitive procedure in a faulty manner – regarding maintaining A4 highway to a company, that has already won a different procedure regarding another part of the highway.

The Chamber in a verdict of 22 June 2016 (KIO 983/16) upheld the appeal lodged by SDZLEGAL SCHINDHELM’s Client and ordered the Directorate to cancel the procedure in this mode. The NAC agreed with the claim that the ordering party did not indicate in the public procurement notice that additional public procurements would be awarded, due to the fact that the ordering party did not specify neither their kind nor scope. Furthermore, the subject of additional public procurement was not consistent with the subject of the primary public procurement. Subsequently, SDZLEGAL SCHINDHELM’s Client will be allowed to participate in new public procurement proceedings regarding maintaining the relevant part of A4 highway.

The judgement is a precedent, because the case concerned appealing from the choice of a mode of procedure – supplementary procurement. In cases like that the biggest problem is – according to existing case-law of the Chamber – to prove an interest in obtaining the contract, in accordance with article 179 paragraph 1 of polish public procurement law. The chamber honored the arguments brought by Anna Specht-Schampera, Partner in SDZLEGAL SCHINDHELM, recognizing that the while questioning the mode of procedure, in which the appellant didn’t have the chance to participate because it was directed to one and only company, interest in obtaining the procurement cannot be interpreted strictly. The fundamental principle is, according to the Chamber, competitiveness of the procurement procedure, understood also as the primacy of competitive modes, expressed in article 10 paragraph 1 of the PPL.