This presentation was made by Wojciech Hartung, 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
THE PUBLIC PROCUREMENT IN THE EUROPEAN UNION:
COMPETITION, INNOVATION AND REMEDIES
Technical expertise during the appeal procedures
- how to use external technical experts and why?
Wojciech Hartung, PhD, Poland
Tuesday, 11 May 2021

2. Technical expertise during the appeal procedures
- how to use external technical experts and why?
AGENDA
 reasons for appointing an expert witness to act before the NAC
 appointment of an expert witness vs. duration of appeal proceedings
 entities authorised to issue opinions
 private expert opinion vs. opinion by a court expert witness
 is it a standard practice to appoint witnesses and expert witnesses in
proceedings pending before an appellate body of first instance?

3. Technical expertise during the appeal procedures
- how to use external technical experts and why?
reasons for appointing an expert witness to act before the NAC
 tasks of an expert witness include providing specialised knowledge to the
court
 an expert witness’s opinion is special evidence that has the evidentiary effect
equal to other evidence
 the court is not bound by the expert witness’s opinion – it verifies the opinion
 the expert witness’s opinion should not contain legal assessments, but it has
a special nature because it contributes to the legal assessment of the factual
situation
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4. Technical expertise during the appeal procedures
- how to use external technical experts and why?
reasons for appointing an expert witness to act before the NAC
 specialised knowledge
NAC’s judgment of 9 April 2013, ref. KIO 556/13
“The purpose of expert witness evidence is not to establish the facts relevant to the case, but
to provide the court with explanations on matters that require specialised knowledge. The
expert witness may not, therefore, substitute for the court in clarifying the actual content of
factual relations .... The court determines the facts relevant to resolving the case based on
other evidence (documents, testimonies of witnesses, hearing of the parties)”
 not law; not facts
NAC’s judgment of 25 February 2019, ref. KIO 181/19
“It is worth recalling that the assessment of the content of legal regulations does not even
belong to the sphere of ’specialised knowledge’, which could be established with the help of
an expert witness - even in a private opinion”
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5. Technical expertise during the appeal procedures
- how to use external technical experts and why?
appointment of an expert vs. duration of appeal proceedings
The adjudicating panel issues an order in which it:
• admits expert witness evidence
• specifies the subject-matter of the expert witness’s opinion
• adjourns the trial
the new date of the trial is set only after the opinion is issued
 average duration of proceedings where expert witness evidence was
admitted: 141 days
 average duration of proceedings without the participation of an expert
witness: 16 days (data for 2018)
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6. appointment of an expert witness vs. duration of appeal proceedings
 expert witness evidence is very rarely used in practice
 the parties are reluctant to use this evidence
 the parties’ requests for the appointment of an expert witness were often
dismissed as it was found that there was no need to do so as it was not
necessary for resolving the case or because the NAC was convinced that the
expert witness evidence was only called for to delay and prolong the appeal
proceedings
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Technical expertise during the appeal procedures
- how to use external technical experts and why?

7. entities authorised to issue opinions
 dowód z opinii biegłego w praktyce jest bardzo rzadko stosowany.
 strony niechętnie korzystają z tego środka dowodowego,
 court expert witness – his/her knowledge in a field is verified before the entry
is made
 other person – confidence in his/her expertise derives not so much from
his/her entry in the register as from the case-by-case assessment of their
knowledge and experience by the National Appeals Chamber
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Technical expertise during the appeal procedures
- how to use external technical experts and why?
entities authorised to issue opinions:
1. natural person entered on a list of court expert witnesses
2. other natural person
3. appropriate research or research and scientific institute

8. © OECD
Technical expertise during the appeal procedures
- how to use external technical experts and why?
private expert’s opinion vs. expert witness’s opinion
NAC’s judgment of 22 May 2020, ref. KIO 342/20
 private opinions cannot constitute evidence in a case … only an opinion
prepared by a person appointed by the court is an expert witness’s opinion
 an opinion of a person who is entered on the list of court expert witnesses,
drawn up at the request of a party and submitted to the court file, cannot be
treated as evidence in the proceedings
 a private opinion is a position of a party and should be considered only as
evidence that the person or persons who signed it expressed the opinion
contained in it, but it is not presumed that the statements it contains are true

9. © OECD
Technical expertise during the appeal procedures
- how to use external technical experts and why?
private expert’s opinion vs. expert witness’s opinion
NAC’s judgment of 19 March 2021, ref. KIO 568/21
 since two opinions with different conclusions had been presented, the Chamber
ascribed greater evidentiary value to the opinion prepared by the (private) expert
appointed by the contracting authority
 the Chamber took into account that the opinion was drawn up in an advisory
capacity for the contracting authority, which, in order to examine and evaluate the
tender, which required specialised knowledge, used an option provided for in the
act by appointing an expert
 even though its opinion does not have the evidentiary value of an opinion of an
expert witness appointed by the Chamber before the appeal procedure, it cannot
be ignored that it was prepared in order to advise the contracting authority before
the final evaluation of tenders, not to support its position in the appeal
proceedings
 the opinion presented by the appellant, prepared at its request, was drawn up for
the purposes of the appeal proceedings (as an aside, it is worth noting that the
author of the opinion cooperates with the appellant, which may also be regarded
as diminishing the evidentiary value of the opinion)

10. Technical expertise during the appeal procedures
- how to use external technical experts and why?
Is it standard practice to appoint witnesses and expert witnesses in
proceedings pending before an appellate body of first instance?
 The Report Functioning of legal protection measures in EU countries
covers 28 EU Member States; in the case of the UK, the information only
concerns England and Wales
 The Report covers proceedings above EU thresholds covered by Directive
2014/24/EU
 The Report discusses legal protection measures concerning contract
award procedures, it does not deal with performance of a contract
 The Report was prepared based on analysis of answers given by law firms
from 27 EU Member States to questions asked in questionnaires
 The Report was prepared as at 31 August 2017
 The Report was prepared by the Polish Public Procurement Law
Association – authors: Anna Szymańska, Piotr Bogdanowicz, Wojciech
Hartung

11. Technical expertise during the appeal procedures
- how to use external technical experts and why?
Is it standard practice to appoint witnesses and expert witnesses in proceedings
pending before an appellate body of first instance?
 the participation of an independent expert witness in first instance appellate
proceedings in public procurement is not a common practice in the European
Union
 such evidence may be lawfully admitted in most EU Member States, although
appellate bodies rarely resort to it (in complex cases with complicated
technicalities). This is the practice in as many as 24 Member States
 appointment of witnesses or expert witnesses before an appellate authority is
most common in two countries, Germany and Ireland (in the form of experts’
written opinions)
 expert witnesses, although admissible, are not appointed in practice (e.g. in
Poland, in ca. 2700 appeals examined annually at the National Appeal
Chamber, whose members have legal educational background, expert
witnesses were appointed only in 7 cases – data from 2018)
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12. Technical expertise during the appeal procedures
- how to use external technical experts and why?
Country Is it a standard practice to appoint witnesses and
expert witnesses?
Czech Republic
Ireland
Germany
Slovakia
Sweden
Hungary
Italy
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13. Technical expertise during the appeal procedures
- how to use external technical experts and why?
Q&A…

14. Technical expertise during the appeal procedures
- how to use external technical experts and why?
Contact:
Wojciech Hartung
wojciech.hartung@dzp.pl
tel. +48 660 440 316