29 October 2012

The litigations with GDDKiA won by NDI

29 October this year, theRegional CourtinWarsaw, Civil Appellate Division V, cognized the complaints lodged against two mutually contradictory judgments of the National Appeal Chamber, both issued with reference to Art. 24.1.1a of the Public Procurement Law Act and concerning exclusion by the awarding entity of the contractor whose contract the awarding entity had terminated from the public procurement procedure.

In the first judgment (S6, Tczewska Interchange), the Regional Court dismissed the complaints lodged by the President of the Public Procurement Office and GDDKiA finding them groundless, and as such upheld the NAC judgment in favour of NDI SA.

In the second judgment (S8, „Grota” bridge) the Regional Court granted the complaints from NDI S.A. and Alpine Bau, and modified the contested NAC judgment by invalidating the GDDKiA action and ordering it to reconsider the applications from NDI and Alpine.

In its oral substantiation the Court shared the position represented by NDI, namely that Art. 24.1.1a of the Public Procurement Law Act is a special and controversial regulation inconsistent with the letter of the he so-called classic Directive it implements. Pursuant to the Directive, the possibility to exclude is valid with respect to a contractor guilty of ‘a serious and culpable professional misconduct’. Ensuing from the obligation to implement the Directive is the necessity to apply pro-European interpretation of the regulation. Consequently, the notion referred to in the Polish act as ‘the circumstances the contractor is responsible for’ should be construed narrowing down its sense to the lack of professionalism instead of broadening its meaning as GDDKiA did in the matters considered by the court.

The court argued that GDDKiA did not, to any extent, prove the contractors’ lack of professionalism, hence there were no grounds for excluding them from the procurement procedures on the basis of the above regulation.
Citing the information provided on the GDDKiA website, the Directorate has already taken up reconsideration of the applications to participate in the tender procedure.

Contrary to the information given on the GDDKiA website, namely that ‘the court did not question the legitimacy of GDDKiA’s termination of the contracts’, the ruling court did not address the issue of legitimacy or correctness of the contract termination, and refrained from it with respect to both the first termination by NDI/Granit, and the later termination by GDDKiA, since the issue constitutes the subject matter of a separate litigation pending before the Civil Court, Division XXV, in Warsaw.

The nature of the judgments is precedential and determining for issues of significance in similar cases. The judgments are valid and final.

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