Proceedings before the National Board of Appeals are often a key stage in public procurement procedures. In one recent case, conducted on behalf of our client – a large company in the construction industry – the Chamber dismissed all three appeals filed, confirming the correctness of the selection of its offer as the most advantageous.
The appeals concerned both the evaluation of bids and the fulfillment of the conditions for participation in the procedure. Each of them was based on separate arguments, challenging the Contracting Authority’s decisions at different stages of the procedure.
Self-cleaning and the requirements of Article 110 of the Public Procurement Law
One of the key appeals focused on the institution of self-cleaning. The appellant argued that the competing contractor had sufficiently demonstrated the prerequisites for applying this institution.
However, the proceedings showed that the contractor failed to submit a set of corrective actions required under Article 110 of the PPL. The documents submitted did not confirm the contractor’s actual reliability or its ability to duly perform the contract, and the measures taken were only apparent.
The National Board of Appeals shared this reasoning and dismissed the appeal in its entirety.
Contractor exclusion and false information in bid
The second appeal concerned the Contracting Authority’s decision to reject the bid of a contractor deemed to be subject to exclusion under Article 109 (1) (8) and (10) of the PPL. This contractor presented in its bid a technical solution for slope protection that did not fall within the closed catalog of solutions provided for in the terms of reference.
In the course of the proceedings, it was further demonstrated that the bid contained false information regarding the experience of the designated Expert. This circumstance had a significant impact on the evaluation of the bid, since without the declared experience the contractor could not have obtained points in the non-price criterion.
The Chamber found that the submission of the documents was at least reckless or negligent, which justified the decision to exclude the contractor. The appeal was dismissed.
Obvious mistake vs. impermissible change in the content of the offer
The third appeal was based on the claim that there was an obvious clerical error in the Appellant’s bid, which should be corrected by the Contracting Authority.
However, in the course of the proceedings, it was shown that any correction would lead to a significant change in the content of the offer. The disputed information was not a typo or an obvious calculation error, but concerned a substantive element affecting the scoring in the non-price criterion.
The Chamber pointed out that in accordance with established case law of the NAC, this type of information constitutes the content of the offer and cannot be corrected post factum. The appeal was dismissed.
Significance of the settlement
As a result, the National Board of Appeals dismissed all three appeals, confirming the correctness of the selection of our client’s bid.
The ruling underscores the importance of preparing bids diligently, documenting experience correctly, and exercising special care in formulating information affecting the evaluation in non-price criteria. It also serves as an important reminder that the institution of self-cleaning requires the demonstration of real and not merely declarative corrective actions.
If you are interested in the details of the case (e.g., reference) – you are welcome to contact directly Jedrzej Witaszczak, legal counsel and manager in the public procurement team: j.witaszczak@dsk-kancelaria.pl
