Appeal to the KIO – representation of contracting authorities

We provide professional support in appeal proceedings, focusing on minimising risks and costs through a thorough analysis of documentation before entering into a dispute. We develop effective litigation strategies and responses to appeals, and ensure dynamic representation before the National Appeal Chamber (KIO), with careful alignment to our clients’ business and legal objectives. Our services also cover the judicial stage, including the preparation of complaints against KIO decisions, ensuring comprehensive protection of our clients’ interests at every level of review in public procurement proceedings.

Analysis of the appeal prior to entering into a dispute

Prior to entering into a dispute and the costly process of appeal proceedings before the KIO, we conduct a detailed review of the procurement documentation: the contract notice, the Terms of Reference (SWZ), the description of the subject matter of the contract (OPZ), and all other relevant documents and circumstances of the case.

Following this analysis, we present the contracting authority with the risks associated with engaging in a dispute before the KIO. We prepare and provide recommendations regarding decisions related to the appeal proceedings. We advise whether, based on the specific facts, a defence against all allegations is justified, or whether — due to identified procedural errors — a more favourable solution would be, for example, a partial admission of the appeal. This approach allows for the minimisation of the risk of costs associated with the appeal process.

Admission of selected allegations, amendment of the SWZ

We assist contracting authorities in assessing whether the allegations raised by contractors are likely to be deemed well-founded by the KIO. If an appeal is filed at the stage preceding the submission of bids, the contracting authority has the opportunity to appropriately modify the Terms of Reference (SWZ) before engaging in a dispute.

The analyses of the SWZ or the OPZ (Description of the Subject Matter) that we prepare highlight the risks of certain provisions being found inconsistent with Public Procurement Law (PPL) regulations. We listen closely to our clients’ needs and assist in drafting new provisions that best achieve the contracting authority’s objectives, while ensuring full compliance with the fundamental principles of public procurement procedures.

Drafting a response to the appeal

As part of the preparations for the hearing before the KIO, we draft a response to the appeal. In addressing the contractor’s allegations contained in the appeal, we take into account the subject matter of the contract and the specific nature of the contracting authority’s activities. When preparing the response, we present the argumentation in such a way that it can be utilised by the KIO in the process of drafting the statement of reasons for the ruling. In practice, the substance of the response to the appeal often prompts the contractor to withdraw the appeal prior to the opening of the hearing before the KIO.

Representation before the National Appeal Chamber (KIO)

Appeal proceedings before the KIO are a highly dynamic process – the priority is the swift resolution of the case. Rulings are usually issued following only one hearing. We are accustomed to the specific nature and pace of proceedings before the KIO; therefore, our actions are swift and well-organised. We always remain in contact with our clients, providing regular updates on the progress of the case.

Complaint against the ruling of the National Appeal Chamber (KIO)

A complaint against the ruling of the National Appeal Chamber (KIO) is a legal remedy that – unlike an appeal – is also available to the contracting authority. A complaint against a KIO ruling must be filed within 14 days from the date of delivery of the ruling; therefore, in the event of an unfavourable KIO decision, we efficiently assist the contracting authority in drafting the complaint. We also represent the contracting authority in cases where the contractor is the party filing the complaint against the KIO ruling.