This presentation was made by Dariusz Piasta, expert, Poland, at the SIGMA webinar held on 11 May 2021, on effective and efficient review of appeals.

1. © OECD
THIRD ONLINE WORKSHOP FOR
PROCUREMENT REVIEW BODIES
EFFECTIVE AND EFFICIENT REVIEW
OF APPEALS: SELECTED ISSUES
SIGMA’s paper on complaint fees –
- pros and cons of different systems
Dariusz Piasta, expert, Poland
11 May 2021

2. Purpose of the paper
 Explain reasons, purpose, advantages and
disadvantages of applying appeal fees
 Present EU requirements (including CJEU
case – law)
 Present various models and solutions
applied in EU/WB region
 Provide recommendations
1

3. Advantages of appeal fees
• Is a barrier against those who would like to abuse the
system by submitting appeals without a good basis,
• may be used as a deposit for the purposes of settling
the costs of review procedure between the review
body and parties to the review procedure,
• economic operators strive to write better appeals, and
provide better evidence to ensure that they will
succeed in the dispute and get the fee reimbursed,
• an appeal fee which is reimbursed by the contracting
authority concerned can also act as the proper penalty
to the contracting authority for the mistakes during the
public procurement procedures.
2

4. Disadvantages of appeal fees
• They are a barrier in access to review procedures in
case they are too high – high fees can reduce a number
of submitted appeals; fewer appeals mean less chances
that potential irregularities would be identified and
corrected; in consequence, there is no ‘incentive’ for
contracting authorities to rectify their mistakes and a
serious risk of abuse of their position in the review
process by contracting authorities,
• increase cost of procurement - high fees combined
with an obligation of contracting authorities to
reimburse the appeals fees to the successful tenderer(s)
might result in a heavy financial burden for contracting
authorities, in particular, in case there are more appeals
in the same procedure.
3

5. EU requirements concerning fees
 EU provisions are silent about the costs of proceedings,
and in particular fees to be incurred by those who
submit requests for legal protection in order to have
those requests reviewed by review bodies.
 Nonetheless, Member States should take the measures
necessary to ensure that decisions taken by contracting
authorities may be reviewed effectively.
 It is therefore indispensable to strike a balance between,
the right of public authorities to impose reasonable fees
that cover actual administrative or judicial costs and
deter frivolous litigation and, on the other hand, the
right of economic operators to have easy access to an
effective remedy.
4

6. Case law (CJEU)
Case C-61/14 “Orizzone Salute”,
• national legislation may require the payment of court
fees in public procurement cases.
• fees which do not exceed 2% of the value of the contract
concerned are not liable to render practically impossible
or excessively difficult the exercise of rights conferred by
EU public procurement law.
• the Directive does not preclude the charging of multiple
court fees to an individual who brings several court
actions concerning the same award of a public contract
or that individual from having to pay additional court
fees in order to be able to raise supplementary pleas
concerning the same award of a public contract within
ongoing judicial proceedings.
5

7. Case law (CJEU)
• The national court is required to examine the
subject-matter of the actions submitted by
an individual or the pleas raised by that
individual within the same proceedings.
• If it found that the subject-matter of those
actions was not in fact separate or did not
amount to a significant enlargement of the
subject-matter of the dispute that is already
pending, it was required to relieve that
individual of the obligation to pay cumulative
court fees.
6

8. Case law (CJEU)
• Case C 495/14, “Tita”, compatible with
Directive 89/665/EEC are fees that:
- amount to EUR 2 000 when the value of the
contract is equal or inferior to EUR 200,000,
EUR 4000 when the value of the contract is
between EUR 200,000 and EUR 1,000,000
and
- EUR 6000 when the value of the contract
exceeds EUR 1, 000,000.
7

9. Case law (CJEU)
 Case C-488/14, “Star Storage”:
Directive 89/665/EEC, read in the light of
Article 47 of the Charter of Fundamental
Rights, allows contracting authorities to require
from applicants the constitution of a good
conduct guarantee, provided that it is refunded
to the applicant whatever the outcome of the
action.
8

10. Models of setting amount of fees (EU countries)
1. Setting fees in proportion to the estimated value
of the procurement in question, for example, 0.5%
or 1% of that value (with an upper ceiling, i.e. a
maximum fee which should be paid regardless of
the estimated value of procurement; sometimes
there is also a minimum fee).
2. Setting different amounts of fees depending on
the type of decision which is subject of review
and stage of the procurement process appeals are
submitted.
9

11. Models of setting amount of fees (EU
countries) (2)
3. Establishing precise amount of fee, such as
EUR X, PLN Y, etc. but differentiating fees
depending on the types of subject of
procurement and the fact whether the
contract is, due to its value, above or below EU
threshold(s).
4. Allowing appeals free of charge (or subject
to nominal admistrative fees).
10

12. Various models applied in Western
Balkans region
 Flat rates, varying according to procurement
value grades
 Percentage of estimated procurement value
with or without maximum fee
 Different amount of fees depending on the
stage of the procedure and types of
decisions challenged
 Hybrid model: 1. below a certain threshold
flat rate 2. above threshold: % of the
estimated value
11

13. (initial) Recommendations
• Not to use the percentage of the total estimated
procurement value as a reference for calculation of a
fee but to determine fixed amounts based on the
estimated value of procurement concerned;
• If it is decided that the percentage of the total
procurement value is kept as a method for calculation
of the amount of appeal fees, to introduce the upper
ceiling, i.e. a maximum fee which should be paid,
regardless of the estimated value;
• In case of fixed amounts of the fees based on the value
of procurement procedure, introduce several different
levels of the fees depending on the value of
procurement procedure (thresholds);
12

14. (initial) Recommendations
• introduce lower level of appeal fees if the appeal is
submitted against provisions of a tender
documentation and higher level of fees if an appeal is
submitted against an award decision.
• In order to save time in procurement procedures and to
increase the quality of tender documentation it is
recommended to stimulate the appeals concerning
tender documentation rather than award decisions.
13

15. QUESTIONS?
THANK YOU VERY MUCH FOR ATTENTION
14