Exclusion of a contractor who participated in the preparation of the procedure – NAC verdict

Exclusion of a contractor who participated in the preparation of the procedure – NAC verdict

The National Appeals Chamber, in a judgement of 26 May 2021 in the case with ref. no. KIO 1183/21, dismissed an appeal of a contractor TPF sp. z o.o., which had been excluded from the proceedings, among others, due to its participation in the preparation of the description of the subject of the contract for the investment entitled: “Development of project documentation for the task entitled: ” Adaptation of the Krzyż station to the parameters of the TEN-T base network as part of the project entitled: “Preparatory works for selected projects”.

The Contracting Authority concluded that the condition referred to in Article 24.1.19 of the Public Procurement Law has been fulfilled with respect to the above-mentioned contractor. According to this provision, a contractor who participated in the preparation of the contract award procedure or whose employee or person performing work under a mandate contract, contract for the delivery of a specific work, agency contract or other contract for provision of services participated in the preparation of such procedure shall be excluded, unless the distortion of competition caused by such participation can be eliminated in a manner other than by excluding the contractor from the procedure.

In the above ruling, the Chamber took the view that since the appellant indicated in its statement of reasons that such a violation had occurred, among other things, the fact that it had prepared the specification allowed it to submit a bid on more competitive terms and to propose elements of the bid price that were not available to other contractors, which constituted its distinctive feature.

The Contracting Authority PKP PLK SA was represented by attorney-at-law Wojciech Piórkowski.

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