Abstract

The description of the terms of reference and the manner of evaluating their fulfillment constitute crucial steps in the process of preparing the proceedings for the award of a public contract by the contracting authority since the implementation of a task depends on the selection of a contractor capable of its correct execution.

The introduction of the provisions of the act of 12 October 2012 on amending the Public Procurement Act and the Act on concessions for construction works or services with respect to examining contractors’ performance capabilities, was aimed at reinforcing the verification process.

Due to vagueness of the new provisions and their diverse interpretation the contracting authorities reluctantly utilize the possibility of examining contractor’s performance capability, in particular with respect to their reliability, qualifications, efficiency and experience introduced by Art. 22.5 of the amending Act.

This problem applies also to other provisions concerning examination of contractors’ performance capabilities.

In addition, the diverse verdicts of the National Board of Appeal and legal opinion published by the Public Procurement Authority that are frequently contradictory to those verdicts have a negative impact on decisions made by the contracting authorities in the proceedings.