Under the amendment of the Public Procurement Law Act, which came into force on July 28, 2016, in tender procedures below EU thresholds, the appeal also applies to the Client’s act of choosing the most favorable offer.

Despite the unambiguous wording of art. 180 sect. 2 of the PPL, the National Board of Appeal consistently rejected appeals in which the Contractors contested the selection of another offer due to a failure to exclude the contractor or to reject their offer. The National Board of Appeal claimed that the appeal may cover only the actions, not the failures of the Client. Complaints may be raised regarding the correct evaluation of offers under each criterion, taking into account all the criteria or the proper functioning of the tender committee. The National Board of Appeal, on the other hand, cannot examine the conformity of the selected tender with the ToR, or the selected contractor’s fulfillment of the terms of participation in the proceedings.

Decisions to reject the appeals were mainly contested by the President of the Public Procurement Office. The District Courts considering the above cases, in most instances, agreed to the position of the President of the PPO, claiming that the National Board of Appeal unjustifiably restricts the possibility of appealing against the selection of the most favorable offer. One of the cases found its finale in the Supreme Court, although there is still no ruling on this matter.

Meanwhile, as reported by Gazeta Prawna, the National Board of Appeal has changed the approach to appeals against the selection of the most favorable offer. Magdalena Grabarczyk, Vice President and Spokeswoman for the National Board of Appeals, pointed out that two court hearings were held during which the rulings of the District Courts, controlling the case law of the Chamber as a second instance, were discussed. It was established that, since the position of the courts allows for the possibility of challenging the most favorable offers in proceedings below the threshold in a uniform manner, the Board – as a court of the first instance – should adopt that position. (http://prawo.gazetaprawna.pl).

The first verdict signaling the new approach of the National Board of Appeal was made on June 13, 2017, in the case with the file number KIO 1077/17. The appeal regarding a below threshold tender was dismissed for substantive reasons, but at the same time, the panel found for the first time that it was not subject to rejection.

As Magdalena Grabarczyk explained in her statement for Gazeta Prawna, this is the first sentence issued after the meeting, which is an expression of the change of the line of case law of the whole Board. Of course, each of its members makes fully independent decisions, but as a whole, we have worked out a change of approach, which should be reflected in subsequent rulings – Magdalena Grabarczyk, http://prawo.gazetaprawna.pl