A precedent-setting PPP case:

On 14 July 2015, the Province Administrative Court in Wrocław, in case file No. III SA/Wr 376/15, heard the complaint of Fondlar Sp. z o.o. with regard to the cancellation by the Lower Silesian authorities of the process seeking an entity to serve as the operator of the Lower Silesian Broadband Network Infrastructure under a public-private partnership (PPP) agreement, which includes expanding and operating the network.

GWW represented Fondlar, who had secured a tender seeking to appoint the operator of the Lower Silesian Backbone Network for the entire region of Lower Silesia. However, the region’s authorities refrained from signing a concession agreement and cancelled the tender. The Company filed a complaint against the decision with the administrative court. GWW represented the Complainant in this case. Joanna Sebzda-Załuska, attorney-at-law, partner at GWW, was the Complainant’s attorney before the Province Administrative Court.

The court battle lasted nearly three months and ended in GWW’s victory. The court granted the motion of Fondlar, represented by GWW, and found that the process had been cancelled unlawfully.

COMMENTARY – Joanna Sebzda-Załuska, attorney at law, partner at GWW:
The Province Administrative Court agreed with our arguments. The court found that the process seeking to select a concessionaire was completed on 30 January 2015 and any actions taken thereafter by the authorities of the Lower Silesian Province, particularly their May 2015 attempt to cancel the process, were groundless as there was nothing to cancel at that point because the process had ended well before that time.
This ruling of the Province Administrative Court has considerable significance for the Polish concession market for construction work and services. Why is that? It is the first time that case law has addressed the issue of a concessionaire exercising its right to cancel the process, taking into account the timing of the action being performed. Furthermore, the ruling confirms that a public entity is required to enter into an agreement after the award procedure is completed.

BACKGROUND
The Lower Silesian Backbone Network was conceived as a project co-funded by the European Union. Its objective is to provide broadband internet access throughout the region. The operator selected in the tender is responsible for launching the service for local network providers. In December 2014, Fondlar Sp. z o.o. was selected as the winner and waited until April 2015 to sign the agreement. However, the Lower Silesian authorities refrained from signing a concession agreement and cancelled the tender. The case was then referred to the Province Administrative Court.