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DZP wins in SAC – bus/tram shelters in Warsaw not threatened

14.05.2014

On Tuesday, 13 May 2014 the Supreme Administrative Court dismissed a cassation appeal filed by the CAM Polska Outdoor sp. z o.o./CAM Media S.A. consortium over the bid submitted by the AMS/Stroer Polska consortium being selected in a procedure to construct and operate bus/tram shelters by way of a concession for works conducted by the Public Transport Authority in Warsaw. This was the last court case related to the concession procedure. It was also one of the first cases to be heard by the SAC pursuant to the provisions of the Concessions Act and the adjudication may be extremely important for the development of the PPP (concession projects) market in Poland.

When dismissing the cassation appeal, the SAC upheld DZP's argumentation in full, confirming that the steps taken by Warsaw when conducting the procedure and selecting the bid submitted by the AMS/Stroer Polska consortium had been correct. In its oral statement of reasons, the SAC stressed that the administrative court controls the legality of steps taken by a contracting authority solely in terms of the Concessions Act. As the court stressed, when conducting the procedure the contracting authority has to observe the principles of fair competition, transparency and equality, and this was done in Warsaw. The court confirmed that, when conducting the procedure and assessing bids submitted by contractors, a contracting authority does not have to assess the legal relations between contractors competing for a concession contract (e.g. the choice of consortium form) in terms of anti-monopoly regulations. For example, whether the consortium members, when competing for a concession contract, concluded for this purpose an anti-competitive agreement is assessed solely by the President of the Competition and Consumer Protection Office and a common court, not the city or an administrative court. The city should, however, take into consideration anti-monopoly authority decisions, if any were issued during the procedure.

DZP was legal adviser to the Public Transport Authority in Warsaw when it was preparing and conducting the procedure and also represented Warsaw in proceedings before administrative courts. The DZP lawyer representing Warsaw was Magdalena Zabłocka, attorney-at-law and Senior Associate in the Energy & Infrastructure Practice.