Meticulous examination of the contractor’s bid and careful analysis of the explanations it submitted allowed the law firm to properly analyze the case and apply effective solutions. Ultimately, they led to the upholding of the appeal before the NAC of our client’s consortium and the exclusion of the contractor whose actions were intended to mislead the Contracting Authority.
The DSK law firm’s client participated as a member of a consortium in a bidding procedure conducted by a municipality for the General Directorate of National Roads and Highways to supervise the construction of a section of road in the municipality. As a result of the tender, the competing bid was selected by the Contracting Authority as the most favorable, and the Client consortium’s bid came in second place in the scoring. The case was analyzed by experts from DSK’s investment department. Their comprehensive approach to the problem made it possible to develop an argumentation that was recognized by the National Board of Appeals following an appeal by the client’s consortium.
The appeal alleged that the selected contractor provided information that misled the Contracting Authority. And this information had a significant impact on the Contracting Authority’s decision.
The basis of the appeal was that the contractor negligently provided information that misled the Contracting Authority. In doing so, the Chamber did not find that the competitor had (successfully) misled the Contracting Authority, but that it had presented information in a way that was intended to do so, regardless of the fact that this effect did not occur. The Chamber found that in accordance with the disposition of Art. 24 para. 1(17) of the Public Procurement Law, the effect does not have to occur for the prerequisites indicated in this provision to be met (unlike in Article 24(1)(16) of the PPL Act). It is sufficient here that the false information could have had a significant impact on the Contracting Authority’s decisions.
The factual situation that is the basis of this judgment is the fact of such manipulation of dates relating to the experience of key persons on the contract to give the impression that they meet the conditions for participation in the proceedings (the criterion of a specific number of months of experience on a project meeting the conditions for value, among other things). A careful examination of the tender documents made it possible to show that the dates indicated by the contractor remained discrepant and contradictory, and instead of the date of the actual start of the service, the date of the signing of the contract on the project in question was indicated, despite the precision of the provisions of the ToR regarding the interpretation of the term “start date”. Our experts further demonstrated that the contractor was aware of the misreporting of the cut-off dates for the indicated functions, which, in the Chamber’s opinion, was evidence of negligence on the part of this contractor, who, with the relevant knowledge, provided the information in a way that did not meet the strict conditions for participation in the proceedings.
During the hearing, we proved that the person named in the bid had less experience than the original documents showed. This meant that the person did not meet the requirement to provide certain services for a strict minimum period of time. The Chamber confirmed this interpretation, pointing out that if the Contracting Authority found that a contractor had the relevant experience, it would do so on the basis of erroneous information provided by that contractor.
The rationale of the judgment indicates that even if the Contracting Authority had been aware of the true state of affairs from other sources, it would not have mattered. Indeed, the mere fact that a contractor submits statements that are untrue and the need to refer to such external sources to verify the information determines the existence of the condition for exclusion from the procedure set forth in Art. 24 para. 1 point 17 of the Public Procurement Law.
In doing so, the Chamber pointed out the impossibility for the contractor to make a so-called “”no-no”. “self-cleaning”, i.e. replacing false information – with true information, as the purpose of introducing the indicated provision into the law was to eliminate from the proceedings contractors who mislead the ordering party as a result of recklessness or negligence.
The NAC, as a result of the appeal proceedings, recognized the appeal of our client’s consortium, ordering the Contracting Authority to cancel the selection of the most advantageous offer, repeat the examination and evaluation of offers and exclude the contractor from the proceedings.
The team was led by Marta Dziewulska and Jakub Depa.
