Abstract

Article 24.2.6 has been added by amendment to the Public Procurement Act, and it establishes grounds for the exclusion from the proceedings for public procurement contracts of bidders belonging to the same group of companies. This solution was intended to create an explicit regulation that would proscribe unacceptable practices undermining the principle of fair competition in vying for public procurement contracts. Despite noble intentions of the legislator to reinforce the principle of fair competition with this regulation, it nonetheless arouses many doubts. The solution in question leaves room for interpretation and quotes many other legal sources; it also necessitates reference to other legal regulations. The newly introduced grounds for the exclusion of bidders from the proceedings for public procurement contracts require familiarity not only with the public procurements law but also with the competition and consumer protection law, companies law, civil law, cooperative law, and accounting. In order to ascertain correctly whether a bidder belongs to a given group it is necessary to define the term “control”, which is essential in interpreting what constitutes a “corporate group”. In order to assess the directions of interpretation of the amendment, it is equally crucial to refer to the judgments of the National Board of Appeal. Only the combination of legal doctrine and judicial practice allows for understanding the newly introduced regulation as well as the inconvenience for bidders and contracting authorities which may arise in the proceedings for public procurement contracts.