One of our clients took part in a tender for supervision over the design and implementation of works and management of the construction of an expressway. His offer was ranked first in the final ranking of offers, but was rejected by the contracting authority due to the allegedly abnormally low price and non-compliance with the ToR. The client decided to appeal to National Appeal Chamber (KIO). It was therefore necessary to develop appropriate litigation tactics.

The subject matter of the appeal was complicated – especially since in the case of an abnormally low price, the burden of proving that the offer does not include it rests with the appealing contractor. Ultimately, after conducting the appeal proceedings, the NAC (KIO) agreed with the position of DSK Law Firm presented by Kinga Kozłowska-Witek and Anna Loch and decided that our client’s offer should not be rejected either because of the abnormally low price or because of non-compliance with the Terms of Reference.

This case once again confirms that in appeal proceedings it is crucial to develop an effective concept of defending the tender and reacting on an ongoing basis to the arguments presented by the contracting authority and any potential parties.