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Judgement of the Regional Administrative Court in Warsaw
of 22 November 2004
II SA 4473/2003
Since authority within the meaning of the Law on Public Procurement was community, it also served the status of the parties in the investigation conducted by the Procurement Office for approval mode source procurement. Referral to the Mayor makes the decision that it is vitiated as set out in Article. 156 § 1 point 4 of the APC, resulting in the annulment of
Justification
On 25 July 2003 based on Article. Paragraph 71. 1 and 1a of the Law on Public Procurement Municipality K.-J. appeared to express zgody na zwiększenie zakresu finansowego i rzeczowego umowy zawartej z wykonawcą wyłonionym w drodze przetargu na rozbudowę szkoły podstawowej. Wniosek podpisał Burmistrz Gminy. Wartość zamówienia miałaby być zwiększona o kwotę 245.045,59 zł. Konieczność zwiększenia zakresu finansowo-rzeczowego zamówienia uzasadniono błędnym wyliczeniem w kosztorysie inwestorskim i nakładczym ilości stali kształtowej i drewna klejonego; ujęciem w tymże kosztorysie zwykłej wykładziny PCV, zamiast wykładziny trwałej i trudnościeralnej (występuje tu wyłącznie dopłata do ceny materiału, bez zmiany zakresu robót); przyjęciem in the above. quotation frames instead of the usual stable wooden frames, without the quotation cost of aluminum facades, steel staircase with its fans, the podchwytu wooden staircase enclosure ventilation ducts, windows on the staircase and powder coating of steel parts visible; disregard the quotation in the works at a localized channel under the floor connecting the existing school, and also taking into account the cost estimate the cost of covering the entire roof with asphalt instead of a partial cover plate with layers of insulation and wood laminate wygłuszającymi.
applicant explained that all these errors were discovered during construction, and confirmed by the Office of Design and construction supervision of projects as a technical error, and estimate pricing. In his view, extract, and commissioned works of these artists selected as a separate contract for technical reasons it is very difficult and may cause disruption of the regulatory process, resulting in a failure to meet the deadline for completion of the first stage of the investment. As a condition for the application of free-hand mode indicated Article. Paragraph 71. 1, paragraph 5 of the Law on Public Procurement.
decision of 26 August 2003, the President of the Public Procurement Office "after examining the application K.-J. Mayor ..." refused to approve the mode-source procurement in the proceedings for the award of the additional works under the name of the task "Expansion of Primary School No. 4 in K.-J." .
support of its position emphasized that the mode of free-hand, being a derogation from the principle of competitiveness can be applied in the cases exhaustively listed in Article. Paragraph 71. 1 of the Law on Public Procurement a provision should be interpreted strictly.
his opinion in this case, all the conditions listed in Article. Paragraph 71. 1, paragraph 5 of the Law on Public Procurement. It can not be considered in the proposal that these works are ancillary works within the meaning of this Act. These are typical works, and the contractor does not need to be a primary implementer of the contract. In a situation where the market operates many contractors performing such tasks, which are able to meet the requirements of Complainant, use the procedure to ensure the principles of competition. Referring to the jurisprudence of the Supreme Administrative Court expressed the view that the consequences of imperfectly structured investment process can not become the basis for the application of mode-source procurement based on the conditions set out in Article. Paragraph 71. 1 of the Law on Public Procurement.
In short, the President of the Public Procurement Office found no evidence of the Article. Paragraph 71. 1 point 1-6 of the Law on Public Procurement, which condition apply the free-hand.
letter dated 11 September 2003, the complainant requested reconsideration application. He alleged that the contested decision was adopted without careful consideration and take into account the lack of possibilities to entrust the performance of specific work to various companies. Increasing the financial scope of the work is apparent in most need of aid only from the contractor for the purchase of materials. The cost of materials in the quotation has been accepted because the calculated incorrectly, without the requirements of the project. Chairman of the Public Procurement Office has not explained doubt that in this case, you would launch a tender for the purchase of materials and execution of their use, or simply buy the same materials.
According to Complainant's salary increase due to the contractor because of the need to use other materials not associated at all with the implementation of additional works, but the Public Procurement Act does not regulate such issues directly. On the other hand, if in quotation incorrectly calculated the amount of material needed to build, use the tender could lead to a situation in which the same components would be performed by various artists.
According to the Complainant's additional works are those which need to provide for the implementation of the project, and were not even included in the estimates underlying the current contract with the contractor. Contrary to the Procurement Office "If this (residual) scope of work is not covered by the contract, may be assumed that such works could not have been foreseen" .
According to Complainant's Chairman of the Public Procurement Office relied on the literal rule without taking into account nature of the investment, its severity and the purpose for which it is conducted.
decision of 23 October 2003, the President of the Public Procurement Office upheld its decision issued in the first instance. Upheld the position of the uniqueness of the application of free-hand mode. Questioned the nature of the additional contract terms basic contract. In his opinion, indicated work can not be regarded as impossible to separate from the main contract, because they are typical works, and the market there are many companies capable of executing such works. Again pointed to the need due diligence in preparing technical documentation.
Mayor K.-J. that decision made a complaint to the Supreme Administrative Court in Warsaw, which filed for annulment of the contested decision.
He alleged that the President of the Public Procurement Office did not refer at all to the allegations and arguments raised in the appeal. Again pointed out that at least part of the work that community wanted to do was not eligible as additional works and the need to conclude further contract was due to subsidies for materials. The scope of work the contractor has remained unchanged. According to the Complainant in the disbursement of these amounts proposal should not be considered as a request for approval for additional works. Proceedings in this regard should be discontinued, as it did not relate to single-source procurement.
applicant acknowledged that the need for additional work order was the result of errors in calculating the cost estimate of the necessary material. However, in his opinion, was justified by the contractor commissioned this work in the free-hand mode, if not as works further, that the reasons set out in Article. Paragraph 71. 1 item 1 of the Public Procurement Act, as commissioned this work to another contractor was not possible for technical reasons.
complainant expressed the view that unmistakable lack of documentation and the consequences of their repair by the investor can not lead to a situation where within a single investment, each of its elements will be executed by another contractor.
In its defense, the President of the Public Procurement Office has applied for its remoteness. He reiterated the argument concerning the inapplicability of this on the mode of the free hand. In addition, he explained that Article. 71 paragraph 5 of the Public Procurement Act applies only to public contractor, and therefore may apply only to contracts for services or construction works within the meaning of. Two paragraphs. 1 point 1 and 3 of that Act. Contractor of the contract to supply because the term is defined "supplier" and services and construction works are carried out by "contractors" , as is clear from the wording of Article. Three paragraphs. 1 and Article. 12a of the Act. So it seems that the award include the purchase of carpets, door frames and materials necessary additions to the lift shaft is not possible on the basis of Article. Paragraph 71. 1 point 5 of the Public Procurement Act, as it is delivered. In the opinion of the President of the Public Procurement Office in this case it is a new order, which grant should be made by the Public Procurement Act. Referring to other work, such as works as a channel or a visible powder coating of steel, although it's hard to deny them the character of the works, it is difficult to concur with the assertion that it was not possible to predict. These works were in fact in the draft. The applicant has not complied due diligence in evaluating proposals and the need for an additional award is the result of negligence in this regard. According to the Procurement Office, these works are standard works, and therefore the executor need not be the same contractor who performs the original contract. The circumstances cited by the applicant did not allow recognition of the applicability of the mode of the free hand on the grounds of Article. Paragraph 71. A law on public procurement, public, therefore, also on Art. Paragraph 71. 1, point 1 of the Act.
Referring to the plea of \u200b\u200black of depth investigate the matter, the President of the Public Procurement Office explained that in support of its action has been brought to disregard the plea of \u200b\u200bthe decision of any difficulties that may arise for the Complainant as a result of the introduction of a new contractor. He claimed that the applicant has prepared a bad investment process, and it is not a circumstance justifying the use of free-hand mode.
According to art. 97 § 1 of the Act of August 30, 2002 - Regulations implementing the Act - the Law on Administrative Courts and the Law - Law on proceedings before the Administrative Courts (Journal of Laws 2002, No. 153. 1271, as amended.) cause assumed to recognize the Regional Administrative Court in Warsaw, which has held as follows:
Pursuant to Art. 134 § 1 of the Law on proceedings before administrative courts within the court decides the case, however, without being bound by the allegations and conclusions of the complaint and established legal basis.
President of the Office of Public Procurement is the central organ of state administration competent in matters of public procurement (Article 8. 1 of the Act (1) of 10 June 1994 on public procurement - Dz. U. 2002 No. 72 pos. 664, as amended.). This authority, leading the proceedings in individual cases decided by administrative decisions, apply the provisions of the Code of Administrative Procedure.
accordance with Article. 28 of the Code of Administrative Procedure is a party, anyone whose legal interest concerned, or who demands actions of the authority due to his legal interest or obligation.
The review by the Court in this case was the legality of the decision of the President Office of the Public Procurement refusing agree to apply the public procurement of awards. Interest in obtaining a decision in this regard was an entity which is contracting, providing a specific contract.
within the meaning of the Employer. Two paragraphs. 1, paragraph 5 of the Law on Public Procurement entity shall apply this law in awarding contracts.
accordance with Article. 4. 1 item 1 of the Public Procurement Act its provisions apply to contracts awarded by public sector entities within the meaning of the Act (2) of November 26, 1998 on public finances (Journal of Laws 2003 No. 15 item. 148, as amended.). The provision of Article. 5, point 1 of that Act provides that the public finance sector includes, inter alia, local government units and their bodies and unions.
Employer in this case was town K.-J. She also appeared in fact to the President of the Public Procurement Office to request their consent to the award, the mode of the free hand. The proposal was signed by the Mayor, as well as a request for a retrial, the contents of which clearly shows that the Municipality has implemented a task named "Expansion Primary School No. 4 in K.-J. ". That fact was confirmed by Agent Procurement Office at a court hearing.
provision of Article. 29 of the Code of Administrative Procedure provides that parties to the proceedings may be natural persons, legal persons, and when it comes to state and local government entities and community organizations - including entities without legal personality.
municipality has the status of legal person under the Article. 2, paragraph. 2 of the Act of 8 March 1990 the Local Government ( Coll. Laws of 2001 No. 142 item. 1591 as amended).. The mayor is the body of the municipality, as provided for in Article. 11a. 1 point 2 of that Act. It is the executive body (Article 26. 5), head of current affairs of the municipality and representing it on the outside (Article 31).
Under Article. 30 § 3 of the Administrative Procedure Code which is not a natural act through their legal or statutory representatives.
In this case, the Mayor has appeared in just such a character - as a representative (legal representative), municipalities, or contracting under the Public Procurement Act.
Since Municipality was contracting, it was considered that it was she, not the mayor, was a party to administrative proceedings conducted by the Procurement Office.
Meanwhile, the two decisions of the President of the Public Procurement Office shall be addressed to the Mayor's K.-J. It was listed in the sentences of decisions and they have been delivered to him. The mayor, not the municipality was regarded as the applicant, and though he is assigned the status page.
It should be noted that the Mayor, as the authority of the municipality belongs to the public finance sector, and therefore also is obliged to apply the provisions of the Public Procurement Act. According to the Court, however, it will be applied to situations where it occurs on its own behalf, as the head of the office such as municipalities and implementing funds related to the activities of this office.
Court did not examine whether, in this case, the Mayor had a legal interest in the occurrence to the President of the Public Procurement with the application for authorization to apply the free-hand, and thus whether it could be considered a party in the meaning. 28 of the Code of Administrative Procedure. Evaluation of the existence of the conditions listed in that provision for the Mayor would be necessary if the public procurement Municipal starred in his own behalf. The file shows, however, as we have already stressed that the mayor acted here on behalf of the community, without a doubt being a party to the proceedings.
Also the content of the decision is not clear that the mayor has been recognized as a party because they meet the conditions laid down in Article. 28 of the Code of Administrative Procedure. The mayor, moreover, also does not refer to those conditions, as justification for the request for a decision in the first and then in the second instance.
accordance with Article. 107 § 1 of the Code of Administrative Procedure in the decision should be found, inter alia, the party or parties. The only entity listed in the operative part of the decision is Mayor K.-J., designated as the applicant: "... following an examination K.-J. Mayor ..." . The content of the decision is clear, therefore, that the Mayor's Office of the President of the Public Procurement held a party to this proceeding, and sent him their decisions.
Since, as shown above, in fact, been a party to this proceeding Municipality as contracting authority, it was considered that the two decisions of the President of the Public Procurement Office was addressed to a person not a party to the case.
Weigh had and the fact that nowhere in the President of the Public Procurement Office did not specify the mayor as an entity acting on behalf of the community, representing her. During the entire procedure instancyjnego treated him as the applicant and his disputed claims, apart from the community.
term as Mayor of the entity, which must be served decision does not in itself would make him subject to which the decision was addressed. However, in the totality of content, whether it confirms that the President of the Public Procurement Office has consistently believed that the party was the Mayor.
In its ruling of 31 March 1998, IV, SA 884/96 Supreme Administrative Court in Warsaw said: 'referral decisions to the authority of the legal person and designation of authority to a party to proceedings (instead of a legal person) and the imposition of certain orders and restrictions on that authority is tantamount to a decision directing a person not a party, which in turn causes the decision is vitiated by the invalidity of meaning. 156 § 1 point 4 of the APC. It should be noted that the imposition of specific obligations on the authorities of the legal person would be allowed only in the event of an express statutory authorization, ". The court composed of grayish to hear this share this view.
Targeting decision to a person not a party to the proceedings is thus a prerequisite annulment of the decision referred to in Articles. 156 § 1 item 4 of the Code of Administrative Procedure. In this case, the disadvantage referred to in that article were both affected by the decisions of the President of the Public Procurement Office. Therefore, the annulment had to address both of these decisions.
complaint filed in this case, Mayor. Since the addressees of the contested decision, it has become, within the meaning of. 50 § 1 of the Law on proceedings before administrative courts, the entity entitled to bring proceedings against that decision.
At this juncture, on the basis of Article. 145 § 1 item 2 of the Act of August 30, 2002 - Law on proceedings before administrative courts (Journal of Laws 2002 No. 153 pos. 1270, Coll. Laws 2004, No. 162, item. 1692) had to be ordered as in the sentence.
applicant requested that the "award of the costs according to the standards prescribed" . However, court records show that he was not called upon to pay an entry and it did not represent a professional representative. Since the complainant did not suffer any costs, there was no basis for a decision on their return based on Art. 200 Law on proceedings before administrative courts.
Decisions not to grant approval of the procurement procedure shall not be enforceable. Redundant It was therefore the inclusion of the mention of the verdict so far as they can not be made as provided in Article. 152 Law on proceedings before administrative courts.
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