Poland: Legal Protection Measures Under Public Procurement Law

INTRODUCTION

Public procurement is an agreement against consideration to be concluded by and between a unit obligated to apply provisions of the Public Procurement Law of 29 January 2004¹ ("PPL"), hereinafter: the "Employer", and a contractor (entrepreneur).

Employers within the meaning of PPL provisions include but are not limited to: units of the public finance sector (e.g. offices, courts, local self-government units), state organizational units without legal capacity (e.g. State Forests National Forest Holding – Państwowe Gospodarstwo Leśne Lasy Państwowe), as well as public interest institutions and some entities operating in energy, telecommunications and transportation sectors.

Public procurements are awarded through formalized proceedings, such as:

• open tender procedure;
• restricted tender procedure;
• negotiations with announcement;
• competitive dialogue;
• negotiations without announcement;
• direct contract agreement;
• price quotation;
• online auction.

Incidentally, it is worth remembering that basic public procurement procedures (i.e. procedures which can be followed without limitation) include the open tender procedure and restricted tender procedure only. Application of other procedures is conditional upon existence of prerequisites set out in PPL provisions.

In the course of the public procurement procedure the Employer is obligated in particular to adhere to PPL provisions and to ensure fair competition and equal treatment of contractors. In order to control compliance with those rules and to ensure proper protection of contractors' interests from violation of PPL provisions, the legislator has introduced legal protection measures available to contractors within the framework of the public procurement procedure.

Legal protection measures are as follows:

• appeal to the National Appeal Chamber (hereinafter: "KIO"– abbreviation which stands for the Polish name: "Krajowa Izba Odwoławcza") attached to the President of the Public Procurement Office, and
• complaint to a regional court.

Let us present below an outline of legal protection measures comprising basic information on their submission and examination procedures and also their legal effects. In an appendix you may also find standard appeal and complaint forms.

HOW THE VALUE OF PUBLIC PROCUREMENT AFFECTS APPEAL PROCEEDINGS

Principles of appeal proceedings in public procurement related matters differ significantly depending on the value of a given procurement. The rule is to limit possibilities of submitting appeals in public procurement procedures where the value does not exceed amounts set out in Regulation of the President of the Council of Ministers of 16 December 2011 on values of procurements and contests which are the ground for the obligation to submit announcements to the EU Office for Official Publications (so called Procurements below thresholds). Meanwhile, contractors have at their disposal broader possibilities of submitting appeals in public procurement procedures where the value thereof is equal to, or exceeds the amounts set out in the aforesaid Regulation (so called Procurements above thresholds).

Current thresholds are as follows:

1. for public procurements awarded by Employers from the public finance sector, excluding public universities, state cultural institutions, state film institutions, local self-government units and their unions, public finance sector units, where the founding or controlling body is a local self-government unit, and also awarded by Employers being state organizational units without legal capacity:
   
   
   1. EUR 130,000 – for supplies or services;
   2. EUR 5,000,000 – for construction works;
      
      
2. for public procurements awarded by Employers other than specified in (i) above, except for the procurements referred to in (iii):
   
   
   1. EUR 200,000 – for supplies or services;
   2. EUR 5,000,000 – for construction works;
      
      
3. for sector employers:
   
   
   1. EUR 400,000 – for supplies or services;
   2. EUR 5,000,000 – for construction works.
      
      

The value of procurements is converted into euro according to the average exchange rate of PLN into EUR; since 1 January 2012 it has been 4.0196 PLN/EUR.

APPEAL

I. Acts of the Employer that may be appealed

1. Procurements below thresholds

In the case of Procurements below thresholds, an appeal may be lodged only against the following acts of the Employer (Art. 180 Sec. 2 PPL):

• the selection of the negotiations without announcement, direct contract agreement, or price quotation;
• the description of the manner in which the compliance with the conditions for participation in the procedure is evaluated;
• the exclusion of the Appellant from a public procurement procedure;
• the rejection of the Appellant's bid.

An appeal lodged against any acts of the Employer other than the listed above will be rejected (Art. 189 Sec. 2 (6) PPL).

2. Procurements above thresholds

In case of Procurements above thresholds, an appeal may be lodged against each and every act of the Employer contrary to PPL, as well as against any omission of an act the Employer is obligated to perform under PPL (Art. 180 (1) PPL). Such acts in particular are:

• contents of a public procurement announcement;
• contents of the specification of material terms and conditions of the public procurement;
• provision of explanations with regard to the specification of material terms and conditions of the public procurement;
• introduction of changes into the specification of material terms and conditions of the public procurement;
• return of a bid;
• opening of a bid;
• exclusion of a contractor;
• rejection of a bid;
• evaluation of a bid;
• selection of the most advantageous bid;
• notification on the selection of the most advantageous bid;
• nullification of the procedure.

3. General remarks

KIO will reject an appeal if it is filed against an act the Employer performed in accordance with a KIO decision or a court judgment, or an act performed in compliance with the demands of an appeal in case objections contained in that appeal were sustained, or whenever the ground for an appeal is the circumstance which was the subject-matter of adjudication by KIO on another appeal filed by the same entity during the same procedure (Art. 189 Sec.2 (4) and (5) PPL).

The appellant needs to prove that they may have or have had a legal interest in winning a contract and have suffered or may have suffered damage as a result of the infringement by the Employer of PPL provisions. An appeal lodged by an unauthorized entity (i.e. which does not have or has not had any legal interest in obtaining a contract and has not suffered or may not have suffered damage as a result of the infringement by the Employer of PPL provisions) will be rejected (Art. 189 Sec. 2 (2) PPL).

II. Deadlines and the manner of filing an appeal

1. Procurements below thresholds

In the case of Procurements below thresholds, the deadline for filing an appeal is as follows:

1. 5 days of the date information on the Employer's act being the ground for an appeal is sent – if the information is sent by a facsimile transmission or electronic mail;
2. 10 days of the date information on the Employer's act being the ground for an appeal is sent – if the information is sent some other way (e.g. by mail, courier service, etc.);
3. 5 days of the date an announcement is placed in the Public Procurement Bulletin or the specification of material terms and conditions of the public procurement is placed on a webpage – if an appeal concerns the contents of the public procurement announcement or the specification of material terms and conditions of the public procurement, if it is the open tender procedure;
4. 5 days of the day on which one learnt, or could have learnt, if acting with due diligence, about circumstances that are the ground for an appeal – in case of the Employer's acts other than referred to in a) - c) above;
5. 15 days of the date an announcement about awarding a contract is published in the Public Procurement Bulletin (or an announcement with rationale – under negotiations without announcement, direct contract agreement, or price quotation), in case the Employer failed to publish an announcement about their intention to enter into a contract, failed to send to a contractor a notification on selection of the most advantageous bid (despite such an obligation), or failed to invite a contractor to submit a bid within the dynamic purchasing system or under a framework agreement if:
   
   
   • the Employer published an announcement on awarding a contract in the Public Procurement Bulletin;
   • the Employer published an announcement in the Public Procurement Bulletin on awarding a contract with rationale (under negotiations without announcement, direct contract agreement, or price quotation);
     
     
6. 1 month of the date a contract is concluded – in case the Employer failed to publish an announcement on their intention to enter into a contract, failed to send to a contractor a notification on selection of the most advantageous bid (despite such an obligation), or failed to invite a contractor to submit a bid within the dynamic purchasing system or under a framework agreement if:
   
   
   • the Employer published an announcement in the Public Procurement Bulletin on awarding a contract without rationale (under direct contract agreement, negotiations without announcement, or price quotation);
   • the Employer failed to publish an announcement on awarding a contract in the Public Procurement Bulletin.
     
     

Legal grounds: Art. 182 Sec. 1 (2), Art. 182 Sec. 2, 3 and 4 PPL.

2. Public procurement above thresholds

In case of Procurements above thresholds, the deadline for filing an appeal is:

1. 10 days of the date information on the Employer's act being the ground for an appeal is sent – if the information is sent by a facsimile transmission or electronic mail;
2. 15 days of the date information on the Employer's act being the ground for an appeal is sent – if the information is sent some other way (e.g. by mail, courier service, etc.);
3. 10 days of the date an announcement is placed in the Public Procurement Bulletin or the specification of material terms and conditions of the public procurement is placed on a webpage – if an appeal concerns the contents of the public procurement announcement or the specification of material terms and conditions, if it is the open tender procedure;
4. 10 days of the day on which one learnt, or could have learnt, if acting with due diligence, about circumstances that are the ground for an appeal, in case of the Employer's acts other than referred to in a) - c) above;
5. 30 days of the date of Publication in the Official Journal of the European Communities of an announcement about awarding a contract (or an announcement with rationale – under negotiations without announcement, direct contract agreement, or price quotation), in case the Employer failed to publish an announcement about their intention to enter into a contract, failed to send to a contractor a notification on selection of the most advantageous bid (despite such an obligation), or failed to invite a contractor to submit a bid within the dynamic purchasing system or under a framework agreement if:
   
   
   • the Employer published in the Official Journal of the European Communities an announcement on awarding a contract;
   • the Employer published in the Official Journal of the European Communities an announcement on awarding a contract with rationale (under negotiations without announcement, direct contract agreement, or price quotation);
     
     
6. 6 months of the date a contract is concluded – in case the Employer failed to publish an announcement on their intention to enter into a contract, failed to send to a contractor a notification on selection of the most advantageous bid (despite such an obligation), or failed to invite a contractor to submit a bid within the dynamic purchasing system or under a framework agreement if:
   
   
   • the Employer published in the Official Journal of the European Communities an announcement on awarding a contract without rationale (under direct contract agreement, negotiations without announcement, or price quotation);
   • the Employer failed to publish in the Official Journal of the European Communities an announcement on awarding a contract.
     
     

Legal grounds: Art. 182 Sec. 1 (2), Art. 182 Sec. 2, 3 and 4 PPL.

3. How to file an appeal

1. An appeal is filed with President of the National Appeal Chamber in writing or in an electronic form with a safe electronic signature (Art. 180 Sec. 4 PPL).
2. An appeal needs to come in at KIO at the date of filing thereof. An appeal handed in at a public postal service operator is not deemed to be filed on time (compare KIO decision of 1 December 2011, KIO 2486/11).
3. An appeal filed after the expiry of the filing deadline will be rejected (Art. 189 Sec. 2 (3) PPL).
4. A copy of an appeal needs to be forwarded to the Employer before the expiry of the deadline for filing it. A copy of the appeal may be sent via facsimile transmission or electronic mail (Art. 180 Sec. 5 PPL). Failure to forward the copy of the appeal to the Employer triggers its rejection (Art. 189 Sec. 2 (7) PPL).

III. Fees

1. Procurements below thresholds

In the case of Procurements below thresholds, the fee for an appeal amounts to:

• PLN 7,500 in the case of Procurements for supplies or services;
• PLN 10,000 in the case of Procurements for construction works.

2. Procurements above thresholds

In the case of Procurements above thresholds, the fee for an appeal amounts to:

• PLN 15,000 in the case of Procurements for supplies or services;
• PLN 20,000 in the case of Procurements for construction works.

3. General remarks

The fee is payable to a bank account of the Public Procurement Office ("PPO"). Current data of PPO bank accounts where the fee can be paid are available on: http://www.uzp.gov.pl/cmsws/page/?D;840;komunikat_o_wysokosci_wpisu_i_numerze_konta,_na_ktore_nalezy_wnosic_wpis_od_odwolan.html.

Whenever the fee is not paid, President of KIO summons the appellant to make payment within 3 days of serving the notice. In case of the appellant's failure to make payment by the additional deadline President of KIO will return the appeal (Art. 187 Sec. 3-6 PPL). In such a case, owing to the circumstance that the appeal is returned, usually, after the expiry of its filing deadline, a contractor, in principle, may not re-submit the appeal.

IV. Form and contents of an appeal

1. Contents of an appeal

An appeal should consist of:

• first name and surname or business name, place of domicile or registered office (address), phone or fax number, and electronic mail address of the Appellant, and first name and surname of a representative(s);
• first name and surname or business name, place of domicile or registered office (address), phone or fax number, and electronic mail address of the Employer;
• subject-matter of public procurement;
• number of a public procurement announcement, an announcement on the intention to enter into an agreement, an announcement on awarding a contract, an announcement on a contest or an announcement on results of the contest – whenever they are published in the Public Procurement Bulletin or the Official Journal of the European Communities;
• an act or omission of an act by the Employer contested to be contrary to the provisions of the law;
• allegations (counts);
• a demand as to the manner of resolution of an appeal;
• factual and legal circumstances being the ground for an appeal, and evidence to support them;
• signature of the Appellant or its representative (representatives);
• a list of appendices.

2. Appendices

An appeal should be accompanied by:

• proof of the fee paid for an appeal in the required amount;
• proof of dispatch of a copy of the appeal to the Employer;
• an excerpt from the National Court Register, power of attorney or any other document confirming power to represent the Appellant.

3. Formulating allegations (counts)

When formulating allegations, you need to point out the violated PPL provision and the manner the provision in question was violated by the Employer.

Example:

"I challenge the appealed acts of the Employer with violating Art. 24 Sec. 2 (2) PPL by the omission of XXX's exclusion from the procedure based on XXX's failure to make the security deposit".

4. Formulating demands

A demand as to the manner of resolution of an appeal most often involves:

• nullification of a given act of the Employer;
• ordering the Employer to repeat a given act;
• ordering the Employer to perform a given act.

When challenging one act of the Employer, you may point out a few demands:

"I move for considering this appeal and ordering the Employer to:

1. nullify the Employer's act consisting in the selection of a bid submitted in the Procedure by XXX as the most advantageous bid;
2. reject XXX's bid pursuant to Art. 89 Sec. 1 (2) PPL (non-compliance of the bid with the tender specification /SIWZ/);
3. select the Appellant's bid as the most advantageous one".

It is also admissible to add alternative demands (żądania ewentualne), i.e. in case of dismissal of one demand you may move for something else.

V. Consequences of an appeal

1. Extension of the deadline for filing bids or applications

In the case of an appeal against the contents of a public procurement announcement or the provisions of the specification of material terms and conditions of the procurement, the Employer may extend the deadline for filing bids or the deadline for filing applications (Art. 182 Sec. 5 PPL).

2. Suspension of the running of the binding bidding period

Whenever an appeal is filed past the deadline for filing bids, the running of the binding bidding period is suspended until a KIO decision has been announced (Art. 182 Sec. 6 PPL).

3. Suspension of entering into a contract

Whenever a public procurement agreement is not entered into, filing an appeal suspends entering by the Employer into the public procurement agreement until a decision has been announced by KIO (Art. 183 Sec. 1 PPL).

The prohibition on concluding the procurement agreement may be lifted by KIO upon the Employer's application whenever failure to conclude it may trigger adverse consequences for the public interest in excess of benefits related to the need of protection of all interests with respect to which there is a likelihood of damage as a result of actions taken by the Employer in the course of the tender procedure (Art. 183 Sec. 2-6 PPL).

4. Need for extension of the validity of security deposit (wadium)

Filing an appeal extends the contract award procedure which may trigger loss of validity of the security deposit made by a contractor in the form other than pecuniary. The Employer calls upon contractors to extend the validity of the security deposit or to contribute a new deposit for a period necessary to secure the procedure until the conclusion of the agreement under pain of exclusion from the procedure.

5. Sending a copy of the appeal

Within 2 days of receipt of an appeal, the Employer forwards a copy thereof to other contractors participating in the tender procedure. If the appeal refers to contents of the public procurement announcement or the specification of material terms and conditions of the procurement, the Employer places the appeal on a webpage. The Employer calls upon other contractors to join appeal proceedings.

VI. Joining appeal proceedings

1. Eligible

Each contractor who has legal interest in an appeal being examined to the benefit of one of parties thereto may join appeal proceedings. Absence of the legal interest in the joining as a party may be a prerequisite for KIO to refuse to issue a decision on allowing a contractor to join the proceedings as the joined party.

2. Deadline

Joining the appeal needs to be notified within 3 days of the date of receipt of a copy of the appeal.

3. How to notify of joining an appeal?

Notification on joining an appeal should be submitted to President of KIO in writing or via electronic mail with a safe electronic signature. A copy of notification on joining an appeal should be forwarded to the Employer and the Appellant.

4. Effects

The contractor who joined the appeal becomes a participant of appeal proceedings. He/she may actively participate in appeal proceedings (including, take the floor, make representations, put forward demands, show evidence), however their acts may not be contrary to acts and/or representations of the party the contractor has joined.

5. Opposition

The Employer or Appellant may file an opposition to another contractor being joined in appeal proceedings not later than by the commencement of a hearing. KIO allows the opposition if a party filing it makes it plausible that the contractor has no legal interest in obtaining adjudication for the benefit of the party joined by the contractor; otherwise KIO will dismiss the opposition.

6. Joining vs. allowing an appeal

The Employer may accept all charges raised in an appeal. In such a case, as long as none of contractors joins appeal proceedings, KIO may discontinue the proceedings, and the Employer will perform, repeat or nullify acts as requested in the appeal (Art.186 Sec. 2 PPL).

In case the Employer accepts an appeal, and another contractor joins appeal proceedings, KIO will discontinue proceedings unless the party joining the proceedings files a protest against accepting the charges raised in the appeal. If the party joining the proceedings files any objections, the appeal will be examined.

VII. Examining an appeal

1. Deadline for examining an appeal

KIO examines an appeal within 15 days, where it is the instructive time limit only, without any consequences if exceeded. In practice, appeals are often examined within 10 days.

2. Formal defects

Whenever an appeal has formal defects (no power of attorney, the fee is not paid, necessary elements of the appeal are missing), President of KIO summons the Appellant to correct or supplement the appeal, or submit proof of payment of the fee within 3 days of the date of serving the notice.

Failure to remove defects within the time limit set by President of KIO results in returning an appeal. Having regarded the circumstance that the appeal is returned usually after the expiry of the deadline for filing same, a contractor may not re-file the appeal.

3. Rejection of an appeal

KIO will reject an appeal if:

• the matter is not subject to PPL provisions (an appeal was filed against acts of the Employer who is not obligated to apply PPL);
• an appeal is filed by the unauthorized entity (in particular the Appellant has no interest in winning a contract or has not suffered and could not have suffered damage as a result of breach of PPL provisions by the Employer);
• an appeal is filed after the expiry of the time limit set in PPL;
• circumstances the Appellant refers to in an appeal are only those that have been already taken into consideration by KIO when examining another appeal concerning the same proceedings instituted by the same Appellant;
• an appeal pertains to an act performed by the Employer in compliance with the contents of KIO's decision or court judgment, or in case allegations (counts) raised in an appeal are accepted – an act performed in compliance with the demand in the appeal;
• in case of Procurements below EU thresholds, an appeal pertains to acts other than referred to in PPL;
• the Appellant fails to forward to the Employer a copy of an appeal.

KIO's adjudicating panel, before a hearing, hold a formal closed meeting where they determine, among other things, if there are any prerequisites for rejection of an appeal. KIO may allow parties, their attorneys-in-fact, or possibly, witnesses or experts, to participate in that meeting. A decision on rejection of an appeal brings appeal proceedings to an end. A complaint against the decision on rejection of an appeal may be filed with the regional court.

4. Withdrawal of an appeal

The Appellant may withdraw an appeal in which case KIO will discontinue the proceedings. The party which joined the proceedings has no right to file a protest against such an act of the Appellant.

5. Hearing

Unless an appeal is rejected by KIO, it will be examined in a hearing.

The hearing is open. The openness of the hearing may be excluded if in the process of examining the appeal a statutorily protected secret may be disclosed, e.g. business secret. The openness of the hearing may be excluded upon a request or ex officio.

At an open hearing, the following may be present: parties, participants of proceedings, their attorneys-in-fact, summoned persons, and the public. If KIO excludes the openness of the hearing, sessions are closed, i.e. without the public, but with participation of parties, participants of proceedings, and their attorneys-in-fact.

6. Evidence

At a hearing parties may take the floor, make representations, submit evidence. Evidence may be as follows: documents, testimonies of witnesses, expert opinions, hearing of parties. KIO may admit evidence which has not been submitted by a party.

Facts publicly known and known to KIO ex officio (e.g. results and findings from other proceedings) do not require evidence. Neither is evidence heard in case facts being the subject-matter of such evidence have already been stated with other evidence. No evidence is required in case facts are admitted in the course of proceedings by the opposing party as long as their admittance casts no doubt for KIO as to their conformity with reality.

7. KIO decisions

KIO allows an appeal if it states infringement of the provisions of the law which materially has affected or may affect the outcome of the contract award procedure. Whenever the appeal is allowed:

• in case a procurement agreement has not been concluded, KIO may order the Employer to repeat their acts or order the Employer's acts nullified;
• in case a procurement agreement has been concluded, and its conclusion was in breach of the provisions of the law (detailed circumstances listed in Art. 146 Sec. 1 PPL), KIO may:
• nullify the agreement;
• nullify the agreement within the scope of non-performed obligations and impose a financial penalty on the Employer;
• impose a financial penalty on the Employer or decide on shortening the period of validity of the agreement;
• in case a procurement agreement has been concluded in breach of the law, but in circumstances allowed by the provisions of PPL, KIO may state infringement of PPL provisions.

8. Justification

KIO decision is announced orally after a hearing has been closed, together with oral rationale. Rationale is drawn up ex officio. Certified copies of the decision together with rationale are delivered to parties and participants of proceedings (Art. 196 Sec. 3 and 5 PPL).

9. Enforceability

KIO decision has legal force which is tantamount to that of a court judgment and is subject to enforcement if it is appended by KIO, upon a party's request, with the enforceability clause (Art. 197 PPL).

10. Correction

If a decision contains any typographical, arithmetical or other obvious errors, a request for correction may be made. KIO will correct such errors in a ruling, and President of KIO will serve to parties to, and participants of the proceedings certified copies of the corrected decision and the ruling concerning the correction (Art. 196 Sec. 6 PPL).

COMPLAINT TO COURT

I. Filing a complaint

1. Subject of, and conditions for filing a complaint

A complaint pertains to a KIO decision (a verdict allowing or dismissing an appeal, or a decision on rejection of an appeal). The complaint may be filed by a party to, or a participant of, appeal proceedings.

The party filing a complaint has to prove that they have or have had a legal interest in winning a contract and have suffered or may have suffered damage as a result of infringement of PPL provisions by the Employer.

2. How to file a complaint?

A complaint is filed with the pertinent regional court through President of KIO. A certified copy of the complaint needs to be forwarded to the opponent.

A complaint should be examined by a regional court of proper jurisdiction for the registered office or the place of domicile of the Employer.

A complaint should be handed in at the reception desk of KIO or sent by mail to the address of the President of KIO. Handing in a complaint at a public postal service operator is tantamount to it being filed with the President of KIO (the date on the post office stamp decides).

3. Deadline

A complaint needs to be filed within 7 days of the date of delivery of a KIO decision.

If the deadline is exceeded, it may be reinstated provided that a party proves it is not at fault for the failure to file the complaint on time.

4. Fee

Whenever a complaint pertains to the Employer's acts performed until the opening of bids, the fee is fixed and it amounts to five times the fee for an appeal. In such a case, the fee amounts to accordingly:

• PLN 37,500 for supply and services contracts, and 50,000 for construction contracts — in case of Procurements below thresholds;
• PLN 75,000 for supply and services contracts and PLN 100,000 for construction contracts — in case of Procurements above thresholds.

Whenever a complaint pertains to the Employer's acts performed after the opening of bids, the fee for a complaint is relative and it amounts to 5% of the value of a contract, not more however than PLN 5 million.

In practice, complaints most often pertain to acts performed after opening of bids, such as exclusion of a contractor, rejection of a bid, selection of the most advantageous bid, etc. The maximum amount of the fee of PLN 5 million is commonly deemed to be the limitation of the constitutional right of access to court. Hence, at present a constitutional complain has been pending before the Constitutional Tribunal as regards potential non-compliance of Art. 34 Sec. 2 of the Law on Court Costs in Civil Matters with Art. 45 Sec. 1, Art. 78 and Art. 176 Sec. 1 of the Constitution of the Republic of Poland (case SK 25/11 joined with SK26/ll).

5. Form and content of a complaint

A complaint should be drawn up in writing and consist of:

• identification of court to which it is addressed (name and address of the court, and/or respective department);
• first names and surnames or business names of parties, their statutory representatives and attorneys-in-fact;
• identification of the document as the complaint against a KIO decision;
• identification of the appealed KIO decision (date of issue and reference number);
• a list of allegations (counts) and their concise rationale;
• pointing out pieces of evidence;
• a request for dismissal of a decision or a change of a decision in full or in part;
• signature of a party or its statutory representative or attorney-in-fact – the complaint should be accompanied by a document confirming authorization of a person signing the complaint;
• listed appendices.

The party filing a complaint may not expand demands that were made in an appeal nor submit any new demands. It is inadmissible to submit new demands and point out new acts violating the provisions of the law. Court will not examine a case within the scope of demands and/or allegations which have not been presented in an appeal (Art. 198d and Art. 198f Sec. 4 PPL).

II. Examining a complaint

1. Procedure

Regional court examines a complaint according to provisions of the Code of Civil Procedure on appeals, subject to PPL provisions.

2. Security

In practice and case law it is assumed that it is allowed to demand that claims pursued in proceedings instituted based on a complaint to court be secured. An application for injunction may include but is not limited to: a ban on entering into a public procurement agreement.

3. Judgments

Court rejects a complaint: if filed after the deadline, if a party failed to cure defects on time, and if it is inadmissible for other reasons. Court dismisses a complaint: if it is groundless.

Whenever a complaint is allowed, court changes the appealed KIO decision and adjudicates as to the merit of a matter.

4. Appellate measures

No appellate measures can parties exercise against a court judgment or decision. Proceedings regarding a complaint are subject to regulations on appeals, thus a court judgment is treated as valid and enforceable. It is only President of the Public Procurement Office who may file a final appeal (skarga kasacyjna) against a judgment or a decision of the regional court.

III. Powers of PPO President

1. Power to file a complaint

President of PPO may file a complaint against a KIO decision with the regional court within 21 days of issuance thereof. Capacity to file a complaint is independent from powers to file same by parties or participants, and President of PPO is released from an obligation to pay the fee on a complaint. President of PPO exercises their right to file a complaint quite rarely (in 2008 – 4 times, and in 2009 – 3 times only).

President of PPO may also join pending proceedings instituted based on a complaint against a KIO decision.

2. Power to file a final appeal

President of PPO may also file a final appeal (last resort appeal) against regional court's judgment which brought proceedings instituted based on a complaint against a KIO decision to an end (Art. 198g Sec. 1 PPL). President of PPO is authorized to file a final appeal within 6 months from the day on which the judgment of the regional court became valid and enforceable, and if a party demands that the judgment be served with rationale – from the date of serving the judgment to the party.

APPEAL STANDARD FORM

APPEAL

IN PUBLIC PROCUREMENT PROCEEDINGS

Subject-matter of procurement:	[name of the subject-matter of procurement] ("Procurement")
Announcement:	[name of publisher: Supplement to Official Journal of European Communities/ Public Procurement Bulletin], [No. and item]

I. Acting pursuant to Art. 180 Sec. 1 of the Public Procurement Law of 29 January 2004 (consolidated text Journal of Laws of 2010 No. 113, Item 759 as amended, hereinafter: "PPL"), on behalf of [name of the Appellant] with the registered office in [locality], the entrepreneur applying for the aforementioned Procurement (hereinafter: the "Contractor"), under powers of attorney granted to me (Appendices No. [number of an Appendix]), I hereby file an appeal against Employer's acts which involve:

1. exclusion of the Contractor from proceedings carried out as open tender regarding the Procurement, reference number of proceedings [number of proceedings] ("Proceedings"), which in consequence resulted in rejection of the Contractor's bid;
2. rejection of the Contractor's bid pursuant to Art. 89 Sec. 1 (2) PPL;
3. selection of a bid placed in the Proceedings by [business name and registered office of another contractor] as the most advantageous bid.

II. I challenge contested acts of the Employer with violating

1. Art. 87 Sec. 1 PZP, Art. 14 PPL in conjunction with Art. 56 and Art. 65 § 1 and § 2 of the Civil Code of 23 April 1964 ("CC") by failure to thoroughly examine and evaluate the bid in its entirety, and in consequence, assuming that the security deposit submitted by the Contractor does not secure potential claims of the Employer which might arise in the circumstances set out in Art. 46 Sec. 5 (1) PPL;
2. Art. 24 Sec. 2 92) in conjunction with Art. 46 Sec. 5 (1) and Art. 82 Sec. 3 PPL and Art. 92 Sec. 1 (3) PPL by exclusion of the Contractor from the Proceedings, despite the absence of the factual and legal grounds to do so, and failure to present rationale of the act in question;
3. Art. 24 Sec. 4 PPL by deeming the Contractor's bid to be rejected in a situation where there was no prerequisite allowing to exclude the Contractor from the Proceedings;
4. Art.89 Sec. 1 (5) PPL by rejecting the Contractor's bid in a situation where there was no prerequisite allowing to do so in the Proceedings;
5. Art. 89 Sec. 1 (2) PPL and Art. 92 Sec. 1 (3) PPL by rejecting the Contractor's bid despite the absence of factual and legal grounds for such an act, and failure to present rationale thereof;
6. Art. 91 Sec. 1 PPL in conjunction with Art. 2 (5) PPL by deeming the Contractor's bid not to be the most advantageous bid.

III. In view of the foregoing, we move that this appeal be allowed and the following be ruled:

1. nullification of exclusion of the Contractor from participation in Proceedings, and consequently, rejection of the Contractor's bid/ nullification of rejection of the Contractor's bid;
2. nullification of the Employer's act involving the selection of a bid placed in the Proceedings by [business name and registered office of another contractor] as the most advantageous bid;
3. re-evaluation of bids, having taken into account the Contractor's bid;
4. charging the Employer with costs of proceedings for the benefit of the Contractor, by awarding PLN 23,600 being justified costs of Appellants as regards the fee on the appeal and the fee of the attorney-in-fact.

IV. The Contractor has learnt about the Employer's acts against which the Contractor files this appeal on [date] (the day on which a fax came in with notification on the selection of the most advantageous bid signed by [name, title], reference number: [No.]). The deadline to file an appeal expires on [date], thus the Consortium files this appeal on time.

V. [a brief justification of the Appellant's interest]

RATIONALE

[each and every allegation (count) and each demand presented above should be referred to in the rationale]

STANDARD FORM OF COMPLAINT TO COURT

Reference number of KIO records: [No.]
Value of the subject-matter of procurement: [value of procurement]
Value of the contested subject-matter: [value of contested subject-matter]
Fee on complaint: [amount of the fee paid]

COMPLAINT

against a decision of the National Appeal Chamber at Public Procurement Office of [date], reference no. of proceedings [No.]

I. Acting on behalf of the Appellant: [name and address] (hereinafter: "Appellant"), I lodge a complaint against a decision of the National Appeal Chamber at the Public Procurement Office dated [date], reference number [No.], issued in reply to an appeal of the Appellant against the Employer's acts performed in the course of a public procurement procedure regarding [subject-matter of procurement], ref. number of the procedure [No.] (hereinafter, respectively: "Appeal", "Procedure" and "Procurement").

II. Contesting the aforesaid verdict in [full/part] I challenge it with:

1. violating Art. [No.] of the Public Procurement Law of 29 January 2004 (hereinafter: "PPL") by [description of violation];
2. violating Art. [No.] of the Public Procurement Law of 29 January 2004 (hereinafter: "PPL") by [description of violation];
3. violating Art. [No.] of the Public Procurement Law of 29 January 2004 (hereinafter: "PPL") by [description of violation].

III. I move for a change of the contested verdict in [full/part] by:

1. allowing the appeal filed by the Appellant against [identification of the Employer's act contested in the appeal]

IV. Furthermore, I move for hearing evidence regarding documents in possession of the Employer and obligating the latter under Art. 248 § 1 of the Code of Civil Procedure to submit them:

[a list of pieces of evidence]

V. I move for an injunction with regard to this complaint by prohibiting the Employer from entering into an agreement with contractor XXX until this complaint has been resolved validly and enforceably.

VI. I move for awarding from the Opposing Party to Complaint for the benefit of the Appellant costs of proceedings according to prescribed norms.

RATIONALE

[in the rationale you should provide the title to file a complaint, develop and justify allegations and support them with evidence; in case of an application for an injunction – give rationale for it]

Footnote

1 consolidated text. Journal of Laws 2007 No. 223, Item. 16 as amended.

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