Table of Contents:
1. KIO Decision
2. Can the provisions of the Civil Code be directly applied to public procurement?
In accordance with Article 8 of the Act of September 11, 2019, Public Procurement Law, the provisions of the Act of April 23, 1964 – Civil Code (Journal of Laws of 2024, item 1061) apply to actions taken by contracting authorities, contractors, and participants in a competition in proceedings for the award of a contract and competition, as well as to public procurement contracts, unless the provisions of the Act state otherwise. The District Court in Warsaw recently commented on how and to what extent the provisions of the Civil Code can be applied in its judgment of September 30, 2024 (case no. XXIII Zs 115/24). The ruling is particularly important as it arose from an appeal against a decision of the National Appeal Chamber (KIO) brought by the President of the Public Procurement Office, who rarely intervenes in KIO’s rulings.
KIO Decision
The case was subject to a decision by the National Appeal Chamber, which upheld the appeal of one of the contractors. The contractor’s offer had been rejected because it lacked a bid form signed with a qualified electronic signature. The contractor submitted a price form and other documents but failed to submit a correct bid form. An analysis of the price form, power of attorney, JEDZ forms of consortium members (…), and a declaration submitted under Article 117(4) of the Public Procurement Law led the Chamber to conclude that, despite the unsigned bid form, the consortium (…) had submitted to the contracting authority, in the required electronic form, all declarations constituting the content of the offer within the meaning of Article 8(1) of the Public Procurement Law in conjunction with Article 66 §1 of the Civil Code.
The KIO ruling was appealed by the President of the Public Procurement Office. The President alleged, among other things, a violation of Article 8(1) in conjunction with Article 16(1) of the Public Procurement Law in conjunction with Article 66 §1 in conjunction with Article 781 of the Civil Code and Article 355 §2 of the Civil Code. The violation was based on the erroneous interpretation that it is possible to infer significant contractual terms of a public procurement agreement from the power of attorney for the consortium leader, JEDZ documents, and a declaration under Article 117(4) of the Public Procurement Law, despite the fact that the bid form, required by the contracting authority and constituting part of the declaration of intent to conclude a public procurement agreement, was not signed with a qualified electronic signature. Furthermore, the interpretation of declarations contained in other documents and statements is limited by the mandatory provisions of the Public Procurement Law due to the professional nature of public procurement procedures.
Can the provisions of the Civil Code be directly applied to public procurement?
The District Court in Warsaw sided with the President of the Public Procurement Office. The Court noted that “the appellant’s allegations were valid, as, under the final phrase of Article 8(1) of the Public Procurement Law, KIO was not authorized to evaluate the disputed offer within the framework of the institution under Article 66 of the Civil Code. The reasoning of the challenged decision suggests that KIO completely ignored the final part of the aforementioned provision, i.e., Article 8(1) of the Public Procurement Law, which clearly states that the application of the Civil Code is only possible if the provisions of the Public Procurement Law do not provide otherwise. Regarding the form of the offer, the Public Procurement Law provides separate (as opposed to the Civil Code) regulations, which are explicitly outlined in Article 63 of the Public Procurement Law. Consequently, the appeal’s allegations regarding KIO’s violation of the above-mentioned substantive legal provisions by resolving the case based on Article 66 of the Civil Code while ignoring Article 63 of the Public Procurement Law were undoubtedly well-founded.”
At the same time, following the President of the Public Procurement Office, the District Court pointed out that the public procurement process constitutes a series of orderly actions successively carried out by the contracting authority (cf. Article 7(18) of the Public Procurement Law). Compliance with the provisions of the Act and the requirements of the contracting authority expressed in the terms of reference (SWZ) reflects the professionalism of participants in proceedings conducted under the Public Procurement Law. Therefore, submitting an offer that does not comply with the mandatory provisions of the Public Procurement Law by a professional participant in the public procurement market should not be rectified in the course of appeal proceedings before the Chamber.
