Beneficiary, pay attention to how the terms and conditions of the contract are defined – the success of the Law Firm

Can the authority impose its own interpretation of the conditions for participation in the tender procedure set by the contracting authority and, on this basis, demand from the Beneficiary to return a part of the funds obtained under the grant? The answer to the above question seems obvious, but as it turned out, a different practice of the authorities may be encountered, as one of our law firm’s clients found out.

The case in question concerned the body’s verification of the correctness of the Beneficiary’s conduct of public procurement proceedings in the form of an open tender for construction works. The Law Firm’s client was a local government unit that acted as the Ordering Party in a construction project that was being implemented and was subject to co-financing from EU funds.

One of the conditions for participation in the tender established by the Employer was that at least one person should have five years’ professional experience in construction, counted from the date of obtaining the licence. In order to prove the fulfilment of this condition, the Contractor had to indicate, according to the Terms of Reference, the following information: “Experience/date of certification”, whereby the sign “/” should have been interpreted as “or”.

The Authority accused the Beneficiary of having selected a Contractor who did not actually demonstrate that he had the experience required by the Contracting Authority, as he only provided information on the date on which the person indicated had obtained qualifications. In the Authority’s view, this practice was incorrect because the period of qualification is not equivalent to the indicated persons having the required experience.

Moreover, in the Authority’s view, the Grantee was in breach of the law in that it did not call on the Contractor to provide a detailed explanation of the experience possessed by the indicated persons. The above, in the Authority’s opinion, meant that the Beneficiary did not in fact require the Contractor to have the experience specified in the contract at all, which in consequence was to prove that the condition imposed by the Ordering Party was excessive and that the principle of competitiveness was violated.

At the same time, the authority did not take into account the Beneficiary’s explanations that, in accordance with the Terms of Reference, the Contractor could prove the possession of experience by indicating only the date when the persons indicated had obtained the qualifications and that at the stage of the Order execution, the Beneficiary had full knowledge that the persons indicated by the Contractor had the relevant qualifications as well as experience.

The case was finally brought before the Provincial Administrative Court and ended with a verdict, by virtue of which the decision of the Authority to oblige the Beneficiary to return approximately PLN 100,000 was annulled.

The Provincial Administrative Court fully shared the position of the Law Firm’s lawyers, indicating, among other things, that the Authority could not assume in advance that there had been a failure in a situation where, although the Contracting Authority had not called on the Contractor to submit additional clarifications, the conditions for the Contractor’s participation in the tender had in fact been met by the Contractor. The Provincial Administrative Court also rightly pointed out that:

A team from the law firm was involved in the case, consisting of legal advisor Krzysztof Brysiewicz, trainee solicitor Małgorzata Woźniak, trainee solicitor Katarzyna Anioł.