Public tenders: How to calculate the period for filing an appeal?
If the deadline for filing an appeal in a tender procedure falls on a Saturday, Sunday or holiday, the contractor may file the appeal on the next business day.
Art. 182 of Poland’s Public Procurement Law specifies the period for filing appeals with the National Appeal Chamber. In practice the most common periods are 10 days or 5 days, and are counted from the date the contractor learns of the act by the contracting authority which is the basis for the appeal, which essentially means the date notice of the action of the contracting authority is transmitted, publication of an announcement in the Official Journal of the European Union or in Poland’s Public Procurement Bulletin, publication of the terms of reference or technical specifications on the website, or the date on which, with due diligence, the contractor could learn of the circumstances which are the grounds for the appeal.
An appeal is filed with the president of the National Appeal Chamber in written form or in electronic form with a secure electronic signature verified with a valid qualified certificate. The appellant must also remember first to transmit a copy of the appeal to the contracting authority ensuring that it can review the content of the appeal prior to the deadline for filing the appeal. Proof of service of a copy on the contracting authority is enclosed with the appeal.
In the case of appeal proceedings before the National Appeal Chamber—unlike in court cases—in order to meet the deadline it is not sufficient to dispatch the pleading at the post office. The original of the appeal must actually reach the National Appeal Chamber before the filing deadline. In practice this means filing the appeal at the offices of the chamber during business hours, or using an electronic signature verified with a valid qualified certificate. Qualified electronic signatures are not very popular, however, and require certain organisational efforts and costs, and therefore if the contractor does not already use such a signature it is probably not worthwhile to obtain one just for the purpose of a specific appeal.
It should be mentioned that in the recently published Public Procurement White Paper, a report from consultations with participants in the public procurement system devoted to an assessment of the functioning of procurement regulations in Poland, the Ministry of Economy rightly calls for introduction of the possibility of filing or joining an appeal by electronic means by entities with a trusted profile in Poland’s Electronic Platform of Public Administration Services (e-PUAP) system. Obtaining the status of a trusted e-PUAP user is free of charge and does not require great effort, and therefore it may be expected that introduction of such a solution would increase the percentage of appeals filed electronically. This method of filing an appeal has the added advantage that the appellant is not restricted by the working hours of the office, but may file an appeal up until midnight on the last day of the period for filing an appeal.
In practice, it should be easy to calculate the deadline for filing an appeal. If for example the period for filing an appeal is 10 days, and the appellant was notified of rejection of its offer on 17 March (a Tuesday in 2015), then the appeal should be filed by 27 March (Friday). However, if the period is 10 days and begins to run on a Wednesday, it will expire on a Saturday. On Saturday the clerk’s office at the National Appeal Chamber is closed. Does that mean that the appellant must hurry up and file the appeal on Friday? No.
Under Art. 2(2) of Council Regulation (EEC, Euratom) No. 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits, “working days” are defined to mean “all days other than public holidays, Sundays and Saturdays.” And according to Art. 3(4) of that regulation, “Where the last day of a period expressed otherwise than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day.”
In line with the practice of the Public Procurement Office, this rule from Regulation 1182/71 applies to proceedings for award of public contracts. Therefore if the period for filing an appeal ends on a Saturday, the contractor may file the appeal on the following Monday. And if the period ends on Holy Saturday, the appeal may be filed on the Tuesday after Easter—because Easter Monday is a holiday in Poland.
It should also be explained that Regulation 1182/71 applies directly and takes priority over regulations on calculation of periods in Poland’s Civil Code. And according to the EU’s procurement directives (the Classic Directive 2004/18/EC and the Utilities Directive 2004/17/EC still in force), Regulation 1182/71 should be used to calculate periods specified in the directives (par. 50 and 57 of the respective preambles). As Art. 14 of the Public Procurement Law incorporates rules from the Civil Code by reference only when not otherwise provided in the act, and the method of calculating periods is directly provided for in the public procurement regulations, the reference to the Civil Code does not apply here.
Anna Prigan, Infrastructure & Transport and Public Procurement & PPP practices, Wardyński & Partners
