Waste incinerator in Poznan – won by DZP before the NAB

The National Appeal Board [NAB] today dismissed in full an appeal filed by one of the private partners taking part in a procedure run by the City of Poznan by way of a competitive dialogue to select a private partner to build and exploit a waste incinerator in Poznan. The private partner appealed against the contents of the Terms of Reference as in the private partner's view, the tender submission period was too short , an error had been made in establishing the public entity as regards VAT rate, and the provisions of the PPP agreement were incompliant with the law. The City of Poznan, represented by experts from the DZP law firm, Magdalena Zabłocka, Wojciech Hartung and Izabela Prokofi, motioned for the appeal to be dismissed in full.

It was demonstrated that the 85-day term for submitting tenders had been set with all due care and based on the specifics of the competitive dialogue procedure and on the information provided to the private partners during the procedure. Moreover, the term was dictated by the venture performance timetable, compliance with which is one of the requirements for the City to receive EU funding.

DZP showed that the VAT rate given by the City in the ToR was set correctly, exclusively for the purpose of calculating the price in a way that allowed tenders submitted to be compared. DZP also raised the point that the private partner's allegation as to the contract contents not complying with the law was unfounded, as a PPP contract is a civil law contract whose contents are shaped in accordance with the principle of the freedom to contract and should take into account the justified interests of the City.

The NAB upheld the City of Poznan's arguments in full. The judgment is extremely important as it allows the procedure to be continued effectively and eliminates at this stage any risk of delay, which is also material in terms of obtaining and accounting for EU funds.