We are pleased to announce that on 01 August 2022, the Regional Court in Warsaw – the Public Procurement Court issued a judgment amending the ruling of the National Appeals Chamber (NAC) ordering the Contracting Authority to reject our Client’s tender for the section of the S10 Emilianowo expressway, due to the fact that the tender guarantee was (in the opinion of the Chamber) incorrectly lodged in the form of a bank guarantee allowing the Contracting Authority to request payment only within the binding period of the tender.
The decision received from the Court confirms the correctness of the tender guarantee lodged in this way. The judgment of the Court fully recalled the unfavourable decision of the National Appeals Chamber and opened the way for our Client to sign the contract with the Contracting Authority as the Contractor that submitted the most advantageous tender amounting to approximately PLN 239 million.
The Court’s decision in the case in question is of crucial for the entire public procurement market, as the matter of validity period of the tender guarantee lodged in the form of a guarantee has been one of the most controversial issues of public procurement law in recent years.
So far, there have been two views on the matter in question in the decision of the NAC. According to the first one (currently confirmed by the Public Procurement Court), a contractor shall be obliged to keep the tender guarantee only during the binding period of the tender. Such an obligation results unambiguously from the Public Procurement Law. (PPL Act), as the Contracting Authority is authorised to keep the tender guarantee only within the binding period of the tender, while after its expiration it is obliged to immediately return the tender guarantee.
However, in many decisions – including in the disputed and now already amended NAC judgment of 2 May this year – a different view was adopted. It was argued that the tender guarantee submitted in the form of a (bank/insurance) guarantee should provide for additional deadline for the contracting authority to make a request for payment after the binding period of the tender. The above was justified by the necessity to prevent the situation in which, in the case of the contractor’s avoidance of signing the contract on the last day of the tender validity period, the contracting authority might not have enough time to make a request for payment.
In the appeal against the NAC’s verdict filed before the Public Procurement Court, as well as during the hearing, the BSJP lawyers from the Department of Public Procurement Law presented a number of significant arguments supporting the rejection of the second view presented by the Chamber, which was unfavourable to the contractors. The Court agreed with this view and decided to amend the Chamber’s decision.
It should be emphasised that the Public Procurement Court very rarely issues judgments amending the decisions of the Chamber. We do hope that the above judgement of the Court will contribute to a unified interpretation of the public procurement law in this sensitive area for contractors.
The case was conducted on behalf of BSJP by attorney-at-law Jarosław Sroka, attorney-at-law Grzegorz Wąsiewski, legal counsel trainee Adam Jeżewski.
