Abstract

In the course of public contract award proceedings the contracting authority, as a rule, performs evaluation of the documents filed by a tenderer twice. First, when qualifying the contractors in order to verify their ability of proper performance of a contract, and second, when selecting the most advantageous tender from among all those that have been filed and are unrejectable.

The freedom to adopt the selection criteria is restricted by Art. 91.3 of the Public Procurement Act which stipulates that: An exception which allows for waiving this restriction is a contract for non-priority services specified in Art. 5.1 of the Public Procurement Act. In the Polish public procurement practice it has been commonly accepted that the restriction laid down in Art. 91.3 of the Act is strictly related to the area in which the contracting authority is entitled to stipulate the required conditions for taking party in the proceedings as stipulated in Art. 22.1 of the Public Procurement Act. In its judgment of 26 March 2015, in the case C-601/13 Ambisig, the CJEU (Fifth Chamber) responded to the request for a preliminary ruling from the Supremo Tribunal Administrativo – Portugal concerning – the possibility of evaluating qualifications of the staff assigned to performance of the contract as a contract award criterion. Although the judgment was passed after the new directive had been adopted, its provisions were not applicable in that case (recital 26 of the judgment) and the substantiation is based on the provisions of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004. In its judgment, the Court stated that the applicable regulations do not preclude the contracting authority from using a criterion enabling evaluation of the teams specifically put forward by the tenderers for the performance of the contract and which takes into consideration the composition of the team and the experience and academic and professional background of the team members.

In the light of that judgement and the position of the Polish government expressed in case C 601/13 (Ambisig) it seems that the possibility of formulating the tender award criteria referring to “technological potential) could also be allowed when in specifically indicated situations the “technological potential” offered by the economic operators for performance of the contract would be inseparably linked with the quality of the object of the contract.. In such cases, the evaluation of a tender to that end would in no way be aimed at evaluating theoretical possibilities or abilities of the contractor to perform the contract, but merely at evaluating the value of the tender, that is the resources – in such case tools or equipment – actually used for its performance.