Abstract

The article analyses a new provision of the Public Procurement Act which provides for facultative exclusion of potential economic operators from the contract award procedure. Pursuant to this provision a contractor shall be excluded if in the course of three years prior to the commencement of the procedure he deliberately violated professional duties in a serious manner, in particular when as a result of a deliberate action or gross negligence he failed to perform or improperly performed a contract. The first part of the article outlines the circumstances and grounds for excluding a contractor.

Additionally, the author has described the action which economic operators could take to avoid this type of exclusion. He has noted the fact that the new regulation significantly impedes business activities of economic operators because the contracting authority has no legal measures to effectively demonstrate the wrongful conduct of potential contractors resulting in non-performance or improper performance of a contract.

Special attention has been given to the fact that the analyzed provision is optional. In this context, the purpose of this regulation is questionable in the socio-economic reality of Poland.