Client success! Dispute over the assessment of a grant application submitted under the FENG Programme won.

What was the dispute about?

The client submitted to PARP an application for co-financing of a project co-financed from the Operational Programme European Funds for a Modern Economy including two modules: the R&D module and the Innovation Implementation module, while the competition conditions indicated that it was sufficient for the application to include only one obligatory module from among the above-mentioned.

The total amount of the support applied for was almost 11 million zlotys. The

R&D module involved carrying out R&D work to develop a construction and technological concept of a metal rolling machine using CNC technology.

In the second module, it was planned to implement in the company’s activity and introduce, at least on the domestic market, an innovative device for splitting railway rails, the concept of which was developed on the basis of the results of R&D works carried out by the Applicant outside the project and included, among others, the construction of a production hall and its equipment.

Initially, PARP informed the Client that the application was not selected for co-financing due to the fact that the project did not meet certain criteria.

The Project Assessment Committee (PAC) did not recognise the criterion “The project includes an obligatory module” in the scope of criteria common for the project, which occurred somehow automatically due to the negative evaluation of meeting the obligatory module criteria “R&D module” and “Implementation of innovation”.

As a result of the Protest submitted by our Client, PARP partially accepted the presented argumentation.

However, due to PARP’s failure to recognise the fulfilment of the criterion “Potential to implement the module” in the modular criteria for “R&D module” and the criterion “Potential to implement the module” in the modular criteria for “Implementation of innovation”, the protest was not accepted.

After receiving the information about PARP’s settlement of the protest, the Client approached the Law Firm with a request to appeal PARP’s settlement.

The lawyers of the Office prepared a complaint to the Voivodship Administrative Court in Warsaw

• ,

indicating, inter alia:

• lack of transparent, reliable and objective evaluation of the project by the Project Evaluation Committee and then by PARP
• , basing the evaluation of the project only on the content of the application without taking into account the Client’s explanations during the Panel of Experts
• , interpretation of vague terms included in the competition documentation unfavourable

to

• the
• Client
• , imposing requirements on the Applicant’s project which were not included in the competition documentation.

In particular, the allegations concerned the notion of “critical R&D works ” in the scope of the module criterion “R&D Module”.

“Potential to implement the module” in relation to the control development service for the machine that is the subject of the R&D module.

BBS’s lawyers firstly argued that the concept of critical R&D work was not defined in any competition document.

On the merits, on the other hand, the evaluation of the project ignored the explanation that it is the control system developed by the Client that has the features of innovation, while the planned external service only concerns the creation of software that sets individual elements of this system in motion.

Fully sharing the position of the Firm’s lawyers in the complaint, the Court pointed out that the assessment of the above criterion was very laconic, superficial and amounted to a statement that without the controller the machine would not work, so these are critical works.

Also in the Innovation Implementation module, the fulfilment of the Criterion “Potential to implement the module” was negatively assessed.

At the stage of examining the protest, PARP shared the earlier assessment of the experts and considered that the project implementation schedule was too laconic.

At the same time, PARP pointed out that the timetable for the construction of the production hall did not provide for a detailed description and timetable of individual construction works.

Experts even doubted that the construction of the production hall could be carried out in the autumn and winter (!).

The Firm’s lawyers argued that the description and timetable presented for the planned construction work and the timetable for the purchase of equipment for the hall was so detailed that PARP’s assessment should be regarded as unreliable and non-transparent.

Significantly, at the time when PARP considered the protest, the production hall was almost fully completed, and the stoppage of work was solely due to the double negative (and, as the judgment shows, vague and non-transparent and unreliable) assessment made first by the NCP and then by PARP.

The court had no doubt that the evaluation of the project had been carried out in a manner that violated the law, and that this violation had a significant impact on the outcome of the evaluation.

The only possibility of correcting the errors of assessment demonstrated by the lawyers of the BBS Law Office was to forward the case to the Polish Agency for Enterprise Development to reconsider the project.

The above judgment proves that experts evaluating applications for funding or the implementation of a project are not infallible and it is possible, and even necessary, to argue with their assessment.

The client was represented in the case by:

counsel
• Krzysztof Brysiewicz
• , Ph.D. counsel Michał Dróżdż, Ph.