National Appeals Chamber’s judgements in favor of the client of the SDZLEGAL SCHINDHELM
On 8th December 2017, the National Appeals Chamber issued a judgment (KIO 2443/17, KIO 2445/17) ordering the contracting authority to exclude a rival contractor on the basis of administrative penalties imposed for violating obligations coming from environmental law. This is one of the first judgments ordering exclusion on this legal ground.
The Chamber shared the Chancellery's view that the self-cleaning procedure cannot be just formal, but should actually indicate that "the contractor has taken necessary and real actions or omissions, which in the future will help him in avoiding similar violations". Therefore, self-cleaning should not be limited to void statement that the contractor has either taken corrective actions or denied the fact that these activities were necessary. The contractor must explain and prove what real corrective measures have been taken.
The dispute also concerned the interpretation of the term "environmental law". The Chamber agreed with the Chancellery's arguments that "while interpreting the content of art. 24 sec. 5 point 7 of the Polish Public Procurement Law, one should opt for a broad understanding of the term "environmental law", and therefore refer not only to the legal act (Act of 27 April 2001 on Environmental Protection Law), but to a whole set of regulations regulating the issue of environmental protection obligations".
"In the opinion of the Chamber, careful analysis of the content of art. 24 sec. 5 point 7 of the Polish PPL Act leads to the conclusion that in the circumstances specified above, the exclusion from the proceedings is mandatory, when the contractor violated obligations resulting from the environmental law. (...) the nature of these obligations is irrelevant (...)". Then, it is irrelevant that the infringements in this case had only a technical character.
The case was led by Legal counsel Anna Specht-Schampera - Partner at SDZLEGAL SCHINDHELM and Legal counsel Katarzyna Skiba-Kuraszkiewicz - Partner at SDZLEGAL SCHINDHELM.