On 29 November 2019, the Supreme Administrative Court issued a judgment, allowing a cassation appeal filed by the Law Firm on behalf of a medical entity, which did not agree with the outcome of the competition procedure (contest of tenders) on the conclusion of a contract for the provision of health care services financed from public funds.
The selection board resolved the procedure in favour of a provider who changed the content of the tender at the stage of its consideration by issuing a resolution allowing for the change of answers to (ranking) survey questions given by providers seeking to conclude an agreement with the National Health Fund.
The subject of the court proceedings was to verify the correctness of the actions taken by the Director of the Wielkopolska Regional Branch of the National Health Fund to the extent that he dismissed the Hospital’s appeal concerning the resolution of the competition proceedings and the application for reconsideration of the case.
The Law Firm in the persons of legal adviser Ewelina Jeglikowska and attorney Michał Górski represented the Hospital both in the appeal proceedings before the authorities of the National Health Fund and before the Voivodship Administrative Court in Poznań, which dismissed the complaint against the decisions of the Director of the Wielkopolska Regional Branch of the National Health Fund.
As a result of the cassation appeal lodged, the Supreme Administrative Court, after evaluating the competition procedure, stated that the regulations governing this particular type of competition procedure are absolutely binding, which is a consequence of the subject matter governed by these regulations. In the opinion of the Supreme Administrative Court, this procedure is formalised and its rules are addressed equally to the selection board and the participants in the procedure.
Those provisions indicate that the selection board has the power to request explanations on a tender and to verify the accuracy and correctness of the information contained therein. However, the selection board is not authorised to amend, modify or supplement a tender or create conditions to amend it. This is due to the fact that a competition tender is binding on the parties to the proceedings as soon as it is submitted within the specified time limit. On the other hand, the risk of rejecting a tender on the basis of false data is borne by the tenderer.
The decision of the Supreme Administrative Court is final and cannot be appealed.
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