A formal protest against a negative assessment of a funding application should not be limited to challenging the score awarded. Its effectiveness depends primarily on whether the project assessment involved a breach of the assessment criteria, the rules of the call for applications or other procedural irregularities capable of affecting the outcome. See also: Negative assessment of a funding application – what can be done?
Current administrative court practice shows that a negative assessment may be successfully challenged, but only within strictly defined legal limits. It is important to remember that administrative courts do not reassess projects on their merits. Their review is limited to determining whether the assessment procedure complied with the law and with the binding rules governing the relevant call for applications.
What works in practice?
Procedural errors remain the strongest grounds for challenging the assessment. Courts focus in particular on whether the funding institution:
- applied the assessment criteria exactly as set out in the published call documentation,
- ensured that the assessment was internally consistent,
- provided sufficiently detailed reasons to allow its reasoning to be reviewed,
- treated applicants participating in the same call for applications equally.
If the reasons given for an assessment are too general or internally inconsistent and do not make it possible to reconstruct the decision-making process, this may provide grounds for the assessment to be set aside.
A mere disagreement on the merits is not enough. Arguments based solely on the applicant’s belief that the project deserved a higher score, was more innovative or was better than competing projects are consistently rejected. Judicial review is not a “second round of assessment”. Courts emphasise that neither the protest procedure nor proceedings before the administrative courts are intended to replace the assessment carried out by the funding institution. The court’s role is limited to verifying whether the assessment was conducted in accordance with the law, transparently and on the basis of the published criteria.
The quality of the funding application matters more than many applicants assume. The courts increasingly uphold negative assessments where inconsistencies or gaps in the application prevent a reliable assessment. This may be the case even where the applicant considers those defects minor or purely formal. Judicial review is not intended to correct unclear or internally inconsistent applications.
The deadline is strict. The statutory deadline for filing a formal protest is short and is applied rigorously. Missing it renders the protest ineffective, regardless of the substantive strength of the arguments raised.
When does a formal protest against a negative assessment have genuine grounds?
A formal protest has genuine grounds where the assessment documentation makes it possible to identify a specific objection concerning the way in which the project selection criteria were applied or the manner in which the assessment itself was conducted. The relevant points of reference should be the criteria applicable to the particular call for applications, the project selection rules and the content of the application submitted.
For example, the problem may lie in applying a criterion in a manner that departs from its published wording. The reasons for the assessment may also show that the expert required the applicant to provide elements that the criterion did not require at all, or disregarded information that was included in the application. In such a case, the objection may be based on a comparison between the wording of the criterion, the expert’s assessment and the relevant parts of the application documentation.
Internal inconsistencies in the assessment may also provide grounds for a formal protest. If, in one part of the assessment, the expert accepts a particular circumstance as having been demonstrated, but subsequently relies on its supposed absence to reduce the score or give a negative assessment under another criterion, this raises questions about the consistency of the reasoning applied. A similar problem arises where the reasons given are so general that it is impossible to determine why the project failed to satisfy a particular criterion or why a specific number of points was awarded.
The manner in which the criteria are applied to different projects may also be relevant. If the available materials show that the same criterion was interpreted differently without a reasonable justification, this may give rise to an allegation that the principle of equal treatment of applicants has been breached. Such an allegation must, however, be supported by specific evidence. A mere belief that another project received a more favourable assessment is not sufficient.
Which objections should not be based solely on disagreement with the expert?
The most difficult protests are those that amount to little more than an assertion that the expert should have awarded the project a higher score. Where a criterion requires a qualitative assessment and the expert has provided coherent reasons that fall within the scope of that criterion, the applicant’s different view will usually not, by itself, provide strong grounds for challenging the outcome.
This is particularly relevant to issues such as the degree of innovation, the advantages of a proposed solution over existing technologies, market potential or the quality of the proposed concept. The applicant may be convinced that the project is more innovative than the expert considered it to be. A formal protest must, however, identify an error in the assessment itself. Such an error may consist, for example, in disregarding a particular part of the application, attributing content to a document that it does not contain, applying an incorrect definition, or drawing a conclusion that is inconsistent with the material contained in the project documentation.
When formulating objections, it is therefore important to distinguish a substantive disagreement with the expert from a legal or procedural objection. An argument that “the project deserved a higher score” is considerably weaker than demonstrating that the expert reduced the score because particular information was supposedly missing, even though that information was in fact contained in a specific section of the application, or that the expert applied a requirement that did not follow from the relevant criterion.
What should be checked before filing a formal protest?
Preparing a formal protest should begin with reconstructing the entire project assessment process. The mere fact that the application received a negative assessment is usually not enough to determine whether there are grounds for challenging it.
The first step is to analyse the project assessment sheet or sheets. Both the score awarded and the reasons given for each criterion are important. It should be checked whether the assessment is internally consistent, whether it corresponds to the content of the application submitted, and whether the expert disregarded information that could have affected the outcome.
The second point of reference is the project selection criteria. Any objection should relate to their actual wording, rather than to a general view of how a particular criterion ought to be understood. If the call documentation contains additional definitions, rules for awarding points or methods for calculating them, those elements must also be taken into account.
The project selection rules and the remaining call documentation should also be reviewed. They may contain rules governing the assessment procedure, supplementation of the application, participation of experts, reassessment of particular elements or other procedural requirements with which the funding institution must comply.
The funding application itself, in the version that was actually assessed, also requires separate analysis. For each intended objection, it should be established whether the information on which the applicant intends to rely was in fact included in the documentation submitted to the funding institution. As a rule, a formal protest should not be used to supplement the project with arguments or data that were missing when the application was filed.
Finally, the deadline and formal requirements for filing the protest must be checked. The time limit is short, and missing it may prevent the objections from being examined on their merits. Before submitting the protest, it is therefore necessary to determine the date on which the assessment result was received, the proper method of filing the protest and the elements that the document must contain under the applicable call documentation and legislation.
Practical conclusion
A negative project assessment can be challenged effectively where the dispute is framed as a procedural or legal issue rather than as a disagreement over the quality of the project. In practice, the prospects of success are often determined long before the assessment is issued, by the way in which the funding application is prepared and documented.
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