PPT, D Koba 2, Third ENP East public procurement conference, Tbilisi, 6 November 2019

1. © OECD
3rd regional ENP East conference
on public procurement
Polish review system
Dariusz Koba, KCG, Poland
Tbilisi, 6-7 November 2019

2. Two review systems
Polish procurement system was established in 1994.
The Public Procurement Act (PPA-I) introduced review
system:
1) protest do procuring entity
2) appeal reviewed by the panel of arbiters
3) compliant to a court
In 2004 the new Law on Public Procurement (PPA-II) was
accepted and (after many amandements) review system
changed a lot:
1) appeal reviewed by the National Appeals Chamber
2) compliant to the court (one court from 2021 – PPA-III)
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3. Legal interest
The PPA-I granted contractors the right of review of their
complaints when their legal interests have been infringed
upon through a violation by the procuring entity of the
principles described in the Act.
Why „legal interest”, not economic? - we don’t have it now:
Legal protection measures are granted to contractors, if they
have or had interest in being awarded the contract and
suffered or may suffer a damage as a result of the violation of
the provisions of this Act by the contracting authority.
(PPA-II)
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4. „being awarded the contract”
The PPA-II granted legal protection measures to contractors if
they have or had interest in being awarded the contract and
suffered or may suffer a damage …
Does „being awarded the contract” mean „during the
procedure”? Especially when the Directive 92/13 (as
amended by Directive 2007/66) contains the concept of ‘a
particular contract’.
• What if the contractor tends to cancellation of the
procedure?
Polish National Appeal Chamber asked the Court of Justice of
the European Union the question which was answered that
the concept of ‘a particular contract’ may, where
appropriate, apply to the possible initiation of a new public
procurement procedure. (C-131/16 Archus) 3

5. Protest
The PPA-I stated the procedure starts when the contractor
submits a written protest to the procuring entity.
A protest must contain reasons for the complaint being
submitted and must be filed within 7 days from the day the
contractor/supplier learned or could have learned of the
circumstances giving grounds for the complaint.
Many compliants were resolved at this stage – procuring
entity accepted all or part of pleas and changed its decision
but
in 2009 protests were cancelled…
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6. No protests
Why had we resigned with protests?
To speed up procedures:
 7 days for submission of protest + 5 days to resolve it
 Poland and Ukraine was choosen for UEFA EURO 2012
Was it clever?
There were no statistics about protests (3-5 times more then
appeals)
Number of appeals:
 in late 90s – about 1500 yearly
 after changes – about 3000 yearly
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7. Protests vs. no protests
Are protests usefull?
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protest no protest
cost none registraction fee
(3500 EUR – suppy & services
and 5000 EUR – works)
lawers not needed necessary
relations cooperation conflict
time 12 days --------------------

8. Appeals
 According to PPA-II the contractor submits an appeal to
the President of the National Appeal Chamber (NAC).
 The appellant should dispatch a copy of the appeal to the
procuring entity.
 The procuring entity shall forthwith dispatch a copy of
appeal to all other economic operators who participate in
the contract award procedure (and place it also on the
website – if appriopriate) calling upon the economic
operators to access the appeal procedure.
 Procuring entity can answer the appeal.
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9. Arbitration
The PPA-I set the arbitration procedure for examination of
appeals:
 there were a list of more than 650 arbiters, representing
many professions
 they had different jobs and ocasionally were appointed to
the panel
 the contractor selected one arbiter, the procuring entity
selected another, and the Chairman of the PPO selected
the third; the Chairman also appointed the chairman of
the arbiters panel – usually lawers
 Arbiters were supposed to be neutral and not to represent
the interests of the party that nominated them
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10. Appeal Chamber
The PPA-II introduced the National Appeal Chamber:
 there is a list about 50 members of the Chamber, lawers
only
 it is their full-time job
 the Chairman of the Chamber desides if the case will be
examined by one or three-member panel and appoints
the members (by alphabet)
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11. Examination of appeals
Why had we changed arbitration into the Chamber?
 to professionalize the examination
 demanding recruitment process
 members of the Chamber are independent
 members of the panel can spend more time on case
 less procedural and formal mistakes
but
lawers are specialists in procedural requirements, not
efficiency
arbitrators take into account justness, not only detailed
provisions of the law 10

12. Examination of appeals
Why had we changed arbitration into the Chamber?
 to unify judgements
 less members of the Chamber
 full-time employment
 possibility to develope ways to treat particular
situations
but
it doesn’t work
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13. Examination of appeals
What to choose?
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arbitration the Chamber
professionalization as to the merits as to the law
unification difficult? easier?
cost no difference
time no difference

14. Express judgements
Probably the most important factor is the speed of review
procedure.
The procuring entity may not conclude a contract until the
Chamber passes its judgment or decision which ends the
appeal procedure.
 Time limit to appeal: 5 – 10 – 15 depending on value and
way of communication (according the Directive 2007/66)
 The Chamber examines the appeal within 15 days from
the date of its submission.
 Hearing lasts usually one day and usually the rulling is
announced the same day (or the following day).
 Justification of the rulling is prepared within several days.
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15. Complain to the court
 The parties and participants of the appeal procedure may
complain to the court against the Chamber’s ruling.
 The complaint should be lodged through the President of
the Chamber within 7 days of the day, on which the
Chamber’s ruling was submitted, dispatching
simultaneously its copy to the complaint’s opponent.
 The court shall forthwith examine the complaint, however
not later than within 1 month of the day, on which the
complaint was received by the court.
 The court’s judgement or decision that ends the
procedure in the case shall not be a subject of revocation
complaint.
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16. Thank You.
I wish You better procurements. In another way.
Dariusz Koba
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