Regulation of the Prime Minister of 2 October 2007 on the rules regarding the procedure for examining the appeals (Journal of Law, No. 187, item 1327)

Pursuant to Article 193a (1) of the Act of 29 January 2004 – Public Procurement Law (Journal of Law of 2006 No. 164, item 1163, as amended), it is decreed as follows:

Chapter 1
Formal requirements of an appeal

§1.1. An appeal shall contain:

1) full name or business name and address, telephone and fax numbers of the appellant;
2) full name or business name and address, telephone and fax numbers of the awarding entity;
3) indication of the object of a contract;
4) indication of number of Public Procurement Bulletin or the Official Journal of the European Communities, where the contract notice was published;
5) indication of the website on which the specification of essential terms of contract was made available, if the awarding entity makes it available on the website in question;
6) date when a protest was lodged;
7) brief presentation of objections;
8) request to decide on the appeal;
9) factual and legal justification of an appeal;
10) signature of the appellant  or  representative or attorney;

2. The appeal shall contain as attachment:
1) a copy of the protest;
2) a copy of the decision regarding the protest, if the protest was examined;
3) a proof of payment of the registration fee in the required amount,
4) a power of attorney, if granted;
5) a proof of submission of the copy of appeal to the awarding entity.

§2. 1. In case of failure to enclose a proof of payment of the registration fee on the day an appeal is lodged at the latest, the President of Public Procurement Office, hereinafter referred to as “the President of PPO”,  shall call on the appellant to submit it within three days from the dispatch of the notice.

2. The dispatch, referred to in Paragraph 1, shall also mean a notification sent by fax to the indicated number, if the appellant acknowledges its receipt. The President of PPO shall forthwith confirm in writing the content of the notice.

3. If a proof of payment of the registration fee is not presented within the fixed time limit, the President of PPO shall return an appeal to the appellant at the address indicated in the appeal, leaving its copy in the documentation of the appeal procedure, notifying the awarding entity about this activity.

§3. 1. Having confirmed that the registration fee has been paid, the President of PPO shall notify the awarding entity about the receipt of an appeal, simultaneously call on it to submit forthwith a copy of the documentation of the contract award procedure, where conformity of a copy to the original documentation is certified by the head of the awarding entity or an authorised person, except for requests to participate in the contract award procedure or tenders submitted by economic operators, who are not subjects of the appeal.

2. The original documentation of the procedure including requests to participate in the contract award procedure or tenders submitted in course of the contract award procedure shall be submitted by the awarding entity to the seat of the Public Procurement Office, hereinafter referred to as "the Office" not later than before the proceeding is opened.

Chapter 2
Handling of a lodged appeal

§ 4.1. An appeal lodged to the President of PPO shall forthwith be entered in the computer data base of the Office and in the register of appeal cases being assigned with a file reference number.

2. The President of PPO shall submit the appeal to the Chairman of the National Appeal Chamber, hereinafter referred to as “the Chairman of Chamber”, immediately after establishing that the registration fee for the appeal was paid.

3. The President of the PPO shall submit forthwith to the Chairman of the Chamber the copy of the documentation of contract award procedure submitted by the awarding entity and other documents connected with the appeal procedure.

4. In case of joint hearing of the appeals, the appointment of the adjudication panel of the National Appeal Chamber, hereinafter referred to as “the adjudication panel”, occurs under the file reference number of the first registered appeal.

5. If another appeal is lodged, being the subject of joint examination together with the appeal, in case of which the adjudication panel has already been appointed, the Chairman of the Chamber orders the joint examination of the appeals, shall refer them for examination by the adjudication panel, appointed in accordance with paragraph 4.

§ 5. An appeal and the copy of documentation of contract award procedure shall be made available at the seat of the Office at the request of the parties and participants of the appeal procedure. If the party and the participant in the appeal procedure appointed the attorney, the appeal together with the copy of the documentation shall be made available to the attorney.

§ 6.1. An appeal may be withdrawn by the appellant at any time before the proceeding is closed.

2. After the session or hearing is opened, the appellant shall make an on-record written or oral statement about the withdrawal of an appeal.

3. A economic operator, who requested to enter the appeal procedure, may withdraw a request to enter the appeal procedure at any time before the hearing is closed.

4. In case referred to in Paragraph 3, the National Appeal Chamber, hereinafter referred to as ”the Chamber”, shall not examine the request to enter the appeal procedure and shall dismiss unexamined evidence submitted by the economic operator requesting to enter the appeal procedure, unless the evidence has already been examined or the Chamber finds it necessary to examine this evidence ex officio.

5. If an appeal is withdrawn by the appellant, the Chamber shall not examine a request to enter the appeal procedure.

§7. A list of appealed cases, including the adjudication panel appointed for those cases (cause list) is made public prior to the commencement of proceeding by placing it at the seat of the Office in the publicly accessible place, on the website of the Office, by the doors of the courtroom, where the examination of the appeal is to be conducted.

Chapter 3
Preparation of a session and proceeding

§ 8. Sessions and proceedings of the Chamber shall be held at the seat of the Office. The Office shall arrange support services for the arbitration panel, in particular:

 1) performance of activities of appeal reporter;
 2) court room which allow examination of an appeal or appeals in public;
 3) performance of other activities necessary for the proceeding to run properly and efficiently;
 4) archive room to which appeal case files are submitted after the appeal procedure is closed.

§ 9.1. The Chairman of the adjudication panel performs simultaneously the activities of a reporter.

2. In complicated cases and in case of a joint examination of the appeals, the Chairman of the Chamber may appoint other member than the chairman of the adjudication panel for the post of a reporter.

§ 10.1. Immediately after ordering the joint examination of the appeals, the Chairman of the Chamber shall forthwith notify it to the parties and participants of the appeal procedure.

2. To a session and proceeding, where the appeals are examined jointly by the Chamber, the provisions applicable to the examination of one appeal shall apply respectively.

§ 11. 1. The date of the session of the Chamber shall be set by the Chairman of the Chamber and notified to the parties and participants of the appeal procedure.

2. The notification shall be dispatched with confirmation of receipt at least three days before the date of the session.

3. A notification, referred to in Paragraph 2, shall also apply to a notification sent to the parties and participants of the appeal procedure by fax, if they indicate the fax number and confirm its receipt. The Chairman of the Chamber shall immediately confirm in writing the contents of the notification.

4. The notification shall be submitted to the economic operator who enters the appeal procedure, if he requested to enter the appeal procedure at least three days before the date of the session of the Chamber. The provision of Paragraph 2 shall not apply.

§12.1. If the member of the appointed adjudication panel fails to appear or is excluded from participating in the examination of an appeal, the session shall not take place, and the Chairman of the Chamber shall set a new date, which he shall notify to arbitrators and participants in the procedure, with reservation to Paragraph 6. The provisions of §11 (1)-(3) shall apply respectively.

2. The Chairman of the Chamber shall not set a new date of the session of the Chamber, if a new member of the adjudication panel appointed to examine an appeal agrees to participate in the examination of an appeal on a given day.

§13.1. The session may be preceded by deliberation of the adjudication panel, appointed for the examination of the appeal. The chairman of the adjudication panel shall decide on the need of deliberation, and in particular the need of discussing factual or legal issues of the appeal. 

2. In complicated cases, the session is preceded by deliberation of the adjudication panel, appointed for the examination of the appeal.

3. The deliberation should take place on the day or the day before the session.

Chapter 4
Session and proceeding

§14. Examination of an appeal shall commence with the calling of the case by the appeal reporter, including full names or business names of participants in the procedure and the file reference number of the case.

§15. At the session, the Chamber shall carry out formal and legal activities as well as checking activities aimed at preparing the proceeding, and in particular shall examine the appeal or appeals lodged and the documentation of the contract award procedure.

§16. 1. The Chairman of adjudication panel shall open and close the session.

2. After the opening of the session, the chairman of adjudication panel shall check whether the parties and participants of the appeal procedure have been properly notified about the date of the session and whether persons representing the parties and participants of the appeal procedure are authorised to appear on their behalf.

3. If case of failure to appear by the party of the appeal procedure and in case of lack of proof of effective submission of the notification concerning the date of the session, the Chamber shall adjourn the session and set, in consultation with the Chairman of the Chamber, a new date of the session.

4. Failure to appear by the party or participant of the appeal procedure who has been properly notified about the date of the session shall not defer the examination of an appeal.

5. At the session, having examined the effectiveness of the request to participate in the appeal procedure, the Chamber shall decide about allowing the economic operator to participate in the appeal procedure.

6. The provisions concerning the proceeding shall apply respectively to a session.

§17. 1. At a session, the Chamber depending on the factual findings, rejects an appeal, discontinues the appeal procedure or closes the session and opens the proceeding.

2. If, in the case of joint examination of appeals, the Chamber finds at the session that at least one appeal under examination is the subject of rejection or that with respect to at least one appeal a notice of withdrawal has been effectively given, it shall reject an appeal or discontinue the appeal procedure and shall refer the remaining appeal or appeals for examination at a proceeding.

3. When awarding costs of the appeal procedures the Chamber shall take account of all the costs incurred in a given appeal procedure proportionally to the number of all the appeals examined jointly.

4. When deciding on the award of costs of the appeal procedure with regard to appeals referred for examination, the Chamber shall take account of all the costs incurred in the appeal procedure, except for costs already awarded pursuant to Paragraph 3.

§ 18. 1. A hearing shall be held in the Polish language.

2. A party or participant in the appeal procedure having no command of the Polish language shall appear at the hearing accompanied by a sworn translator.

3. All documents shall be submitted in the Polish language, and if they are drafted in a foreign language, a party or participant of the appeal procedure who refers to them shall present their translation into the Polish language certified by a sworn translator.

§19. 1. A proceeding shall be presided over by the chairman of the adjudication panel, who, in particular, opens the proceeding, orders breaks, gives the floor to parties and participants of the appeal procedure, asks questions, allows members of the adjudication panel to ask questions, gives the wording to the record, closes the proceeding and announces the decision.

2. The chairman of the adjudication panel may give consent for the course of the proceedings to be recorded by representatives of the radio, television and press by means of image and sound recording devices, when there is a justified public interest and the important interest of the party or the participant of the appeal procedure is not against, and when the performance of these activities will not hinder the proceeding.

§20. 1. Following the opening of a hearing, the chairman of the adjudication panel, and in case referred to in §9 (2) the appointed reporter, shall present the facts of the case taking account of charges brought up in the protest and in the appeal.

2. The chairman of the adjudication panel shall give the floor in turn to the appellant, and then to the awarding entity.

3. When the economic operator effectively enters the appeal procedure on the side of the appellant or the awarding entity, the chairman of the adjudication panel shall give the floor to the economic operator after the appellant or the awarding entity, respectively.

4. In the case of joint examination of the appeals, the chairman of the adjudication panel shall give the floor to the appellants and the awarding entity as well as economic operators who entered the appeal procedure on their side. The order of the floor of the appellants and economic operators, who entered the appeal procedure, is set by the chairman of the adjudication panel taking account of the fact that the appellant takes the floor before the awarding entity, and the economic operators, who requested the entry to the appeal procedure, take the floor after the party whose side they are on. 

§21.1. The Chamber may obligate the parties and the participants of the appeal procedure to present documents or other evidence significant for the examination of an appeal.

2. The Chamber admitting the evidence in the form of an expert opinion shall set the time limit for preparation of an opinion by the expert and shall adjourn the proceeding.

3. The Chairman of the Chamber shall perform organisational tasks relating to the appointment of an expert, in particular shall provide an expert with an officially certified copy of the decision on his appointment and copy of the documentation of the contract award procedure necessary for the preparation of the opinion.

§22.1. After an opinion has been prepared by an expert , the Chairman of the Chamber  shall set the date of the adjourned proceeding, of which he shall notify the parties and  participants of the appeal procedure in a manner referred to in § 11 (2) and (3).

2. Before setting the date of the adjourned proceeding, the Chairman of the Chamber shall send to the parties and participants of the appeal procedure an officially certified copy of the opinion prepared by an expert.

3. The Chamber shall determine in the cost settlement of the appeal procedure, referred to in §25 (1), the amount of remuneration payable to an expert.

§23. 1. The Chamber may adjourn a session or proceeding, if it finds necessary to examine the evidence, which could not be examined within the fixed time limit or for other important reasons, setting simultaneously, in agreement with the Chairman of the Chamber, the new date of the proceeding.

2. In case referred to in (1), the chairman of the adjudication panel shall instruct the parties and participants of the appeal procedure about an obligation to appear on the set date without separate notification. The absent parties and participants of the appeal procedure shall be notified about the date of the adjourned proceeding in a manner referred to in § 11 (2) and (3).

§24. 1. Before closing a proceeding, the chairman of the adjudication panel shall give the floor first to the appellant and then to the awarding entity. The provision of § 20 (3) shall apply respectively.

2. Until the closing of the proceeding, the party or its attorney may submit a motion regarding the costs of the appeal procedure. This provision shall not apply to the economic operator who requested to participate in the procedure.

§ 25.1 Reports shall be taken on a session and proceeding and the cost settlement  of the appeal procedure taking account of the remuneration of an expert or sworn interpreter shall be prepared.

2. The reports and cost settlement of the appeal procedure shall be signed by the chairman of the adjudication panel and reporter.

3. Correction of the report and cost settlement of the appeal procedure may be made on a request or ex officio.

4. A decision on the correction of the report and cost settlement of the appeal procedure is made by the Chamber. Having made a correction of the report, the chairman shall make a note of it in the report.

5. The standard form of a report is determined in Attachment no. 1 to the Regulation.

Chapter 5
Exclusion of a member of the adjudication panel

§26.1. Until the closing of a proceeding, a party or a member of the adjudication panel may submit to the President of PPO a written motion to exclude a member of the adjudication panel from examination of the appeal; the motion should include the factual and legal justification.

2. The chairman of the adjudication panel shall order break in the session or the proceeding and shall submit to the President of PPO a written motion. The motion is examined forthwith after its receipt.

3. The President of PPO shall initiate explanatory proceedings, which include in particular:

1) Hearing of a member of the adjudication panel, if he submitted a motion to exclude him from the examination of the appeal;
2) Demand of a written explanation from a member of the adjudication panel, whom the motion concerns, if the motion for exclusion was submitted by one of the parties.

4. A decision of the President of PPO on the exclusion of a member of adjudication panel from participation in examination of the appeal or on the refusal of the exclusion shall be submitted to the parties, to the member of the adjudication panel, whom the motion concerns, as well as the Chairman of Chamber.

5. In the event of exclusion of a member of adjudication panel from participating in the examination of appeal after the session of the adjudication panel has been opened, the new composition of the adjudication panel shall repeat activities carried out by the adjudication panel originally appointed to examine the appeal, where such activities have significance for examination of the appeal, including evidence proceeding, if it is requested at least by one of the parties.

Chapter 6
Decisions

§ 27.1. Following the close of a proceeding, the chairman of the adjudication panel shall order a break for the closed meeting deliberation by the arbitration panel and shall notify those present at the hearing about the date for the decision to be announced.

2. The deliberation shall be presided over by the chairman of the adjudication panel; The deliberation includes discussion and voting on the decision and justification. All members of adjudication panel shall participate in voting, in the order fixed by the chairman of the adjudication panel, with the chairman being the last to vote.

3. Decisions shall be adopted by majority of votes.

§ 28. 1. A decision of the Chamber shall include:
1) title of the decision;
2) place and date of issue;
3) indication of adjudication panel, parties and participants of the appeal procedure;
4) decisions regarding demands of the appellant or appellants and the award of costs of the appeal procedure;
5) justification;
6) instruction about the possibility of lodging the complaint against the decision ;
7) signatures of all the members of adjudication panel.

2. Decision on the substance of the case is made in form of a judgement, which is issued after the proceeding. Decision on the rejection of the appeal and discontinuation of the procedure in the event of withdrawal of the appeal is issued in form of a resolution.

3. In case of appeals referred for a joint examination, the Chamber may issue a joint decision. The provision of (2) shall apply respectively.

4. The standard forms of a judgement or resolution is specified in the Attachment No. 2 and 3 to the Regulation.

5. The standard forms of a resolution about discontinuation of the appeal procedure is specified in Attachment No. 4 and 5 to the Regulation.

§ 29.1. A member of adjudication panel, who voted different than the majority, may append a separate opinion to the issued decision, making a note thereof next to his/her signature on the decision.

2. A member of adjudication panel, who appended a separate opinion, shall prepare, before the announcement of the decision, a justification of a separate opinion on a separate sheet. A separate opinion shall be enclosed with the case documentation.

3. The parties and participants of the appeal procedure may familiarized themselves with the separate opinion and its justification; may not however receive officially certified tenors thereof. The separate opinion shall not be announced.

§ 30. A justification of the decision is made by the chairman of the adjudication panel, and in case, referred to in §9 (2), the appointed reporter.

§ 31. 1. During the announcement of the decision of the Chamber in the scope referred to in § 28 (1) (1) – (4), all those present, except for the adjudication panel, shall be standing.

§ 32. The original decision shall be signed in a manner, specified in §28 (1) (7), with affixed round official seal bearing the words "National Appeal Chamber at the President of the Public Procurement Office in Warsaw”.

2. Tenor of the decision depending on its name shall bear the seal: "Tenor of the judgement " or "Tenor of the resolution" and the seal: "The original bears relevant signatures. Certified to be a true copy". Conformity of a tenor to the original is certified by the Chairman or Vice-chairman of the Chamber or any other authorized member of the Chamber.

§ 33. 1. The Chamber may correct, by means of a resolution, misprints and computational errors or other obvious errors made in the decision. The chairman of the adjudication panel shall make a note about the correction on the original of the decision.
2. Tenors of the corrected decision and a tenor of the decision of the Chairman of Chamber about correction shall be submitted forthwith to the parties and participants of the appeal procedure.

3. The standard form of a resolution on correction of decision is specified in Attachment no. 6 to the Regulation.

§ 34. After the appeal procedure is closed, the Chairman of the Chamber shall submit files of the appealed case to the President of PPO to be placed in the records.

Chapter 7
Final provision

§ 35. The Regulation shall enter into force on 12th  October 2007.

PRIME MINISTER