Stadler's appeal against the cancellation of the tender for the delivery of 16 EMUs held by Koleje
Mazowieckie has gained the positive opinion of the National Appeal Chamber (Krajowa Izba Odwoławcza).
According to the National Appeal Chamber, Koleje Mazowieckie had no legal grounds to cancel the
tender. Stadler, a leading system supplier of customer-specific solutions for rail vehicle
construction, decided to appeal against the decision of Koleje Mazowieckie (Mazovian Railways),
because despite the fact that the Stadler's offer of the modern and popular FLIRT trains, assembled
in Siedlce, received the best evaluation in the tender, Koleje Mazowieckie cancelled the tender. The
justification was that the price of EUR 76 million net offered exceeded the allocated budget which
amounts to EUR 79 million gross. Stadler was convinced that this decision had no legal justification.
According to the documentation presented by the company, the net price offered by Stadler fits in the
assigned budget. However, Koleje Mazowieckie added 22% VAT to the net price, which according to the
tax law should not have been added. In addition, irrespective of the supplier from which Koleje
Mazowieckie buys the vehicles, VAT tax is in fact deductible, which is valid for all railway
operators in Europe. The tender holder therefore had no legal grounds to cancel the tender. This
argument was accepted by the National Appeal Chamber, which ordered Koleje Mazowieckie to annul its
decision about the cancellation of the tender. Stadler is expecting to sign a contract with Koleje
Mazowieckie in the nearest future. This is important to guarantee that Stadler can deliver the
ordered vehicles before the EURO 2012 Championships, as they are urgently needed for this event.
"Stadler's Executive Board decided to appeal against the decision of the tender holder as it was
convinced that its arguments were justified, and therefore the Board is very satisfied that the
National Appeal Chamber upheld Stadler's appeal," said Peter Spuhler, CEO and the owner of Stadler
Rail Group.
In defence of the company's staff in Siedlce and of fair and free competition on the market, Stadler
felt compelled to submit its appeal first to the tender holder, and then to National Appeal Chamber.
According to Polish tax law, the price offered by Stadler fits in the budget allocated by Koleje
Mazowieckie for the purchase of 16 EMUs. Even if the offer had exceeded the budget, standard practice
has been first to find additional funding rather than cancel the tender immediately. In previous
tenders for rolling stock, the tender holder has attempted to source the necessary funding, when the
purchase price of the best offer has been higher than the allocated budget. This happened, for
example, in the recent tender for 20 EMUs in the Mazovia province, when the contract was allocated to
another producer.
This is the second appeal that Stadler has won within the last few days. Last Friday (26 February
2010) Stadler gained support for its appeal in the above mentioned tender of the Mazovia province for
20 EMUs. In this case, Stadler protested because it was convinced that the company awarded the
contract did not meet all the criteria requested by the customer.
The results of two appeal confirm Stadler's conviction that the principles of fair competition are
applied in Poland.