Wierzbowski Eversheds Sutherland represents the Polish Association of Construction Employers in before the National Appeal Chamber

Wierzbowski Eversheds Sutherland represented the Polish Association of Construction Employers (PZPB) before the National Appeal Chamber (KIO) in an appeal by PZPB in the tender for design and execution of construction and dredging works in the upgrading of the Świnoujście–Szczecin waterway, conducted by the State Treasury (director of the Maritime Office in Szczecin). PZPB was represented by attorney at law Witold Sławiński from the firm’s tech & engineering practice.

PZPB was joined in the appeal by Porr SA from Warsaw, Van Oord Dredging and Marine Contractors BV from the Netherlands, Energopol-Szczecin SA, and Dredging International NV from Belgium, which also filed a separate appeal.

The appeal upheld by KIO was the second filed by PZPB in this tender proceeding. On 30 January 2018 KIO issued a ruling upholding a portion of the allegations raised by the Polish Association of Construction Employers in its first appeal. One of the objections involved the obligation to include in the flat fee the costs connected with extraction and disposal of ferromagnetic objects. The National Appeal Chamber ordered the contracting authority to amend the terms of reference with respect to establishing the fee for extraction of ferromagnetic objects so that it was not included in the flat fee but was calculated on the basis of a cost estimate for the number and type of objects extracted.

In the view of PZPB, the contracting authority failed to fully comply with the order including in the KIO ruling of 30 January 2018 by amending the functional and operational program, which in essence excluded from payment under the cost estimate ferromagnetic objects in the terrestrial zone which were not found to be objects of a military origin. Consequently, the risk associated with extraction of potentially hazardous ferromagnetic objects was still shifted to the contractors to some extent.

In the ruling issued on 12 April 2018, the National Appeal Chamber upheld the second appeal by PZPB, awarding costs to PZPB. KIO held that the contracting authority had not fully complied with the ruling of 30 January 2018 instructing it to amend the terms of reference to base the fee for extraction of ferromagnetic objects on the number and type of objects extracted. KIO agreed with PZPB that the operative wording of the January ruling must be strictly followed. The earlier order did not limit the use of the cost estimate to calculation of fees for extraction and disposal of ferromagnetic objects which, upon exposure and examination, proved to be hazardous materials of a military origin. Finally, settlement under the cost estimate could not be limited to the aquatic portion of the zone where the work would be performed. The appeal by the other appellant, Dredging International NV, was denied in its entirety.