22 April 2013

The NCA has granted the entire appeal lodged by NDI S.A. with respect to the Tczewska Junction

On 22 April the National Chamber of Appeal issued the award wholly granting the appeal lodged by NDI S.A. from the company’s exclusion from the procurement procedure for the Construction of the „Tczewska” Junction at the crossing of the A6 motorway and the existing Tczewska Street (Phase II), the latter decision made by the Awarding Authority – General Directorate for National Roads and Motorways on 29 March.

The above NCA award should not be surprising in view of the previous valid judgment binding on the parties, which had been pronounced by the Regional Court in Warsaw (case ref. V Ca 1982/12) on 22 October 2012, where the Court ordered invalidation of NDI S.A.’s exclusion from the procurement procedure and reconsideration of the contractor’s request to participate in the procedure.

In the light thereof, the fact that GDDKiA did not honour the Court judgment and once again excluded NDI S.A. from the procedure (instead of inviting it to participate) has only caused unreasonable delay of the entire tender procedure.

The National Chamber of Appeal fully shared the position presented by NDI S.A. and concluded that the case concerned res judicata, which meant that the same issue could not be disputed once again. As the NCA saw it, the awarding entity referred to the same behaviour on the part of the contractor, the latter not judged as substantiating exclusion. In view of the above, the NCA granted the appeal lodged by NDI S.A. and ordered GDDKiA to cancel NDI S.A.’s exclusion and invite it to submit the tender.

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