JDP represented a consortium consisting of INTOP S.A. (formerly: “INTOP Warszawa” Sp. z o.o.), Trakcja S.A., INTOP Infrastruktura Sp. z o.o. and WKS Grybów Sp. z o.o. in a tender conducted by PKP Polskie Linie Kolejowe S.A. for the design and execution of works on railway line C-E 20 at the Czachówek Wschodni – Pilawa section, including the construction of a new bridge over the Vistula.
This is one of the most significant infrastructure projects currently underway in the rail sector. The project is of great importance for freight transport and line capacity, and one of its key elements is the construction of a new double-track crossing over the Vistula river in Góra Kalwaria. The tender has attracted considerable interest from the market and has been the subject of fierce bidding competition among contractors.
The bid submitted by the consortium represented by JDP was the most advantageous in terms of price, but it was rejected by the contracting entity on the grounds that the contractor had provided false information in its declaration regarding its belonging to a group of companies.
After the contractor itself disclosed the error, the consortium implemented the so-called self-cleaning procedure, involving full disclosure of the circumstances and the implementation of corrective measures. Nevertheless, the contracting entity considered that, in a procedure where false information had been provided, self-cleaning was not permissible, and excluded the contractor, subsequently rejecting its tender.
JDP advised the client at every stage of the case, including the appeal proceedings before the National Appeals Chamber. During the proceedings, JDP’s experts demonstrated that the approach taken by the contracting entity was not supported by the provisions of the Public Procurement Law, nor by national or EU case law. The National Appeals Chamber agreed with the arguments put forward by JDP, ordering the consortium’s bid to be re-admitted to the proceedings and re-evaluated. As a result, the client re-entered the contract bidding process and once again its bid was found most advantageous.
The decision is significant not only for these proceedings, but also for the interpretation and practice of applying the provisions concerning the grounds for excluding contractors and the application of the self-cleaning procedure in the course of an ongoing tender procedure. The case demonstrates that assessing such situations requires not only a strict interpretation of the statutory provisions, but also consideration of proportionality and the actual nature of an infringement.
The case was handled by: Wojciech Merkwa, attorney-at-law, Aleksandra Blukacz, advocate, and Piotr Duma, attorney-at-law.