Conclusion of the public procurement contract before the appeal examining and the complaint against the judgment of the National Appeals Chamber

Włodzimierz Dzierżanowski

Uczelnia Łazarskiego
https://orcid.org/0000-0003-2632-3329

Abstract

The article discusses the possibility of concluding a public procurement contract after the selection of the most advantageous bid but before the issuance of a ruling of the National Appeals Chamber deciding on an appeal negating the correctness of this choice, as well as before the judgment of the court examining the complaint against the judgment of the National Appeals Chamber. It raises the issues of admissibility of the exemption from the obligation to refrain from concluding a contract before the ruling of the National Appeals Chamber and the right to secure for claim in complaint proceedings. It also indicates the consequences of a contract concluding before the National Appeals Chamber issues its ruling and before the court issues its judgment, distinguishing them into those that arise when the contract is concluded under conditions permitted by law and contrary to the law.

In the article, I would like to point out that when creating the provisions on concluding public procurement contracts and determining the permissible moment of their conclusion, the legislator had in mind two not fully possible reconciliations of the directive. The directive on fast decisions as to the correctness of the selection of the contractor with whom the contract will be concluded and the commencement of its performance, and the directive on the supervision of such selection by authorised state authorities, including court supervision. The adopted legal structure results in the fact that the speed of concluding contracts gains primacy. In practice, supervision over compliance with the law has been limited to a single-instance decision in such cases by the National Appeals Chamber. The court’s ruling in the case brought by the appeal against the judgment of the National Appeals Chamber is rather a legal assessment that has no practical effect, which must raise doubts considering the principles of a State governed by the rule of law.

Keywords:

public procurement law, public procurement contract, standstill period, compensa- tion for tenderer excluded from a procurement procedure