Table of Contents:
1. The National Appeals Chamber or Civil Proceedings?
2. A Change in Approach Following the Supreme Court Ruling
3. What Is the Position of the National Appeals Chamber?
The Act of September 11, 2019, Public Procurement Law, grants the contracting authorities the right to retain the bid bond in cases specified in Article 98, paragraph 6. However, situations arise where the contracting authority retains the bid bond despite the lack of grounds for such action. The case law regarding the retention of bid bonds is inconsistent, leading contractors to often pursue the return of their bid bonds.
The National Appeals Chamber or Civil Proceedings?
This raises the first question: where to claim the return of the bid bond—before the National Appeals Chamber (KIO) or in civil proceedings? If the answer is civil proceedings, it must also be considered whether exhausting the procedure before the KIO is a prerequisite for initiating court proceedings.
A Change in Approach Following the Supreme Court Ruling
A few years ago, opinions on this issue were divided. Courts often held that it was necessary first to file an appeal with the KIO before turning to the courts. The situation changed significantly following the issuance of a ruling by the Supreme Court on February 12, 2014, in which the Court stated:
“In the legal framework in force following the amendment to the Act of January 29, 2004 – Public Procurement Law, made effective on January 29, 2010, by the Act of December 2, 2009, on amending the Public Procurement Law and certain other acts (Journal of Laws item 1778), the judicial path for a participant in proceedings to claim the return of a bid bond retained by the contracting authority under Article 46, paragraph 4a, is admissible without the necessity of first exhausting the appellate procedure regulated by the provisions of the Public Procurement Law.” (Supreme Court ruling of February 12, 2014, IV CSK 291/13).
What Is the Position of the National Appeals Chamber?
Currently, there is no doubt that a contractor seeking the return of a bid bond should do so through civil proceedings. The KIO emphasizes that a contractor does not have a legal interest in challenging the contracting authority’s decision to retain the bid bond via an appeal to the Chamber.
As the KIO points out, Article 505 of the Public Procurement Law should be interpreted in conjunction with Article 554, paragraph 1, point 1. Since an appeal filed solely regarding the retention of a bid bond cannot be upheld due to the lack of impact of the alleged violation of the act’s provisions on the outcome of the procurement procedure, it must be concluded that the appellant does not have an interest in filing it (National Appeals Chamber ruling of February 8, 2024, KIO 164/24).
