300 metres of track that decided the contract

KIO 456/25 and a hard lesson on participation requirements in infrastructure projects

In theory, it is “only” a participation requirement. In practice – it was the entry threshold to a multimillion-euro contract for an intermodal terminal in the Port of Gdynia. The judgment of the National Appeals Chamber (KIO) in case 456/25 of 24 February 2025 is a textbook example of how literally the Chamber is willing to interpret experience requirements in rail-port projects – and how little patience it has today for creative reinterpretations proposed by contractors.

The dispute in brief: the Port of Gdynia, the intermodal terminal and 300 metres of track

Zarząd Morskiego Portu Gdynia S.A. conducted an open sector procurement procedure for the construction of an intermodal terminal in the Port of Gdynia Logistics Centre – complete construction works, including obtaining an occupancy permit.

One of the key participation requirements (technical capability) was to demonstrate that, within the last 10 years, the contractor had carried out at least one construction / reconstruction / renovation of a road-rail surface of a minimum of 300 metres of track.

One of the bidders submitted references from three rail contracts:

• an investment project in the Port of Gdynia – approx. 214 metres of road-rail surface,
• two projects on railway lines – 98.4 metres and 219 metres of track respectively.

In total – over 300 metres. The problem: none of the individual tasks met the required threshold on its own. As a result, the contracting authority held that the requirement had not been met and rejected the offer under Article 226(1)(2)(b) of the Public Procurement Law.

The contractor appealed to KIO and…. lost.

What condition was really at issue?

The Terms of Reference (SWZ) provided that the contract could be awarded only to contractors who demonstrated, among other things, technical capability by showing experience consisting of the execution of a road-rail surface of at least 300 metres of track – as a single construction, reconstruction or renovation project.

Later in the SWZ it was clarified that the condition is considered met if the contractor submits documents confirming the performance of works within one task, together with the indication of the value, place and dates of their execution and documents confirming proper performance.

From the contracting authority’s perspective, the matter was clear: they wanted to see one large, comprehensive investment in a road-rail surface – because such works would be required in the intermodal terminal project

The appellant believed the requirement could be read differently.

The contractor’s defence: aggregation + contra proferentem

The contractor’s arguments were – from their perspective – logical and well-structured:

• Aggregation of experience

Since the SWZ referred to a “road-rail surface”, which technically consists of both a road and a rail component, the contractor argued that nothing prevented the required length from being achieved by combining segments from several contracts, provided the total length reached 300 metres.

• Technical definitions

The contractor referred to technical regulations for roads and railways, arguing that “road-rail surface” could be defined broadly – as a road-rail system fulfilling its function along its total length, regardless of whether the sections were delivered as part of one or several construction projects.

• Proportionality of the requirement

The contractor pointed out that the SWZ itself envisaged a road-rail surface of less than 300 metres (approx. 96 metres of track), so requiring experience exceeding the length of the works covered by the contract was excessive and disproportionate.

• In dubio contra proferentem

Finally, even if the requirement were considered unclear, then – relying on the contra proferentem principle and established case law (e.g. KIO 1905/19, KIO 2863/20) – any ambiguity should be resolved in favour of the contractor.

Sound reasonable? The KIO thought otherwise.

Why the KIO did not “buy” the argumentation

The Chamber based its reasoning on three pillars: literal interpretation, transparency and proportionality, and the limits of the contra proferentem principle.

Literal wording of the SWZ: “at least one construction project”

KIO stated directly: the requirement was clearly formulated.

The wording “carried out at least one construction / reconstruction / renovation of a road-rail surface of at least 300 metres of track” means that the 300-metre length must be achieved within one task – not by aggregating several smaller sections from different contracts.

The appellant attempted to rely on another part of the SWZ stating that the condition is met if the contractor submits documents relating to construction works within one task. The Chamber found that this fragment did not broaden the condition, but rather clarified it – it still concerned one construction project with at least 300 lm of track, not a compilation of several smaller investments.

Transparency and proportionality – but from the contracting authority’s perspective

In the background were Articles 112 and 116 PPL – the obligation to describe participation conditions in a manner proportionate and related to the subject of the contract.

The Chamber emphasised that:

• the condition was formulated clearly and precisely,
• its wording was consistent with the purpose of the contract – construction of a complex road-rail surface in port conditions,
• the mere fact that the required length (300 lm) exceeded the length in the actual project did not in itself make the condition disproportionate.

Proportionality is not an arithmetic exercise. The contracting authority may demand experience “one level above” the works to be carried out, provided such a threshold is reasonably justified. Here – KIO agreed that it was.

Limits of the contra proferentem principle

The appellant hoped for rescue through the “sacred rule” that interpretative doubts should be resolved in favour of contractors. Case law indeed consistently repeats this rule.

KIO 456/25, however, highlights its limits:

• the principle applies only when the requirement is genuinely unclear or internally contradictory,
• it cannot be used to “rewrite” participation requirements or replace the contracting authority’s assessment of the required experience level.

The Chamber found no real ambiguity here – both the contracting authority and its supporting entity had read the condition the same way from the beginning. The appellant’s attempt to manufacture ambiguity was deemed an abuse of the contra proferentem principle.

Conclusions for contracting authorities: how to design experience conditions in infrastructure

From the contracting authority’s perspective, this judgment is – paradoxically – good news. It shows that when participation conditions are well-designed, KIO will not “soften” them merely because a contractor is a few metres of track short of the threshold.

Several practical lessons follow:

• Precision of wording matters

If the intention is experience “within one task” – it must be written exactly as in this case: referring to one construction/upgrade/refurbishment, not to a “total length of works” across multiple contracts.

• A condition may be ambitious, as long as it is not detached from the market

Requiring 300 lm while constructing 96 lm is not a problem if it can be shown that this threshold reflects the scale and complexity of typical projects of this kind.

• The condition and its explanations must be aligned

Auxiliary clarifications in the SWZ cannot create an alternative version of the condition. Here KIO accepted that the clarification on reference documents merely specified how to demonstrate experience without changing its essence.

• Market consultations and discussions with the contract engineer pay off

For port, rail or closed-area projects, it is worth checking typical experience levels in the market before setting thresholds.

For a law firm advising contracting authorities, this is a classic moment when a “boring” review of participation conditions before publication can save the entire tender from future litigation before KIO.

Conclusions for contractors: when to fight and when to let go?

For contractors, the judgment KIO 456/25 is less comfortable, but provides invaluable practical lessons:

• We cannot “stretch” conditions everywhere

When the experience requirement is truly unambiguous – based on one project, one value, a specific length – the chances that KIO will allow creative aggregation of smaller contracts are slim.

• If something is unclear – ask during the tende

The contra proferentem principle is more effective when the contractor raises ambiguity in the Q&A stage. Expecting the Chamber to “add” a favourable interpretation post factum is risky today.

• Building a reference portfolio is a strategic process

For infrastructure contractors, consciously structuring a portfolio to include “large”, comprehensive projects – not only many small segments – is crucial.

• An appeal must be calculated realistically

Before filing an appeal, it is worth comparing the wording of the requirement with KIO case law. Technical arguments may appear strong, but literal interpretation often prevails.

This is exactly where legal support matters – someone who can translate the contractor’s technical intuition (“this experience is very similar!”) into actual litigation prospects.

The broader picture: a tougher KIO approach to participation requirements

KIO 456/25 is part of a wider trend visible in recent case law:

• participation requirements are treated as a key tool of risk management,
• the Chamber clearly distinguishes between situations where documentation is genuinely unclear (and then it applies contra proferentem) and those where a contractor tries to game an obvious condition,
• in infrastructure projects (rail, ports, roads), the Chamber shows strong tolerance for requirements exceeding the scope of a particular project, as long as they are justified and clear.

For contracting authorities – a signal that ambitious requirements are permissible.

For contractors – a warning that searching for ambiguities is effective only where the documentation actually contains them.

In conclusion

The 300 metres of track in KIO 456/25 are in fact 300 metres of conscious thinking about participation conditions.

If you are preparing a tender for rail, port, or road infrastructure – or working on a bid with a non-obvious experience condition – it is worth analysing the documentation first with the eye of someone who has seen many such disputes in the KIO hearing room. It is usually the cheapest stage of the entire procedure.