Abstract

Contracting legal services provided by professional attorneys requires special consideration by the contracting authorities and their using legal mechanisms they are reluctant to apply when contracting standard construction works, services or supplies. This is due to the specificity of free professions, including the profession of legal counsellor, which require special skills, involve greater responsibility and the need to ensure independence of “the profession of public trust”.

Therefore, when preparing the Terms of Reference, especially when describing the object and specifying the conditions for taking part in the procedure (Art. 22.1 of the Public Procurement Act), define and lay down its expectations with respect to expertise, special skills beyond the knowledge of laws and the form of in which the services are to be provided. First of all, the contracting authority has to waive a typical scheme that is observed in practice, that is reject the dogma of value, which not always verifies the ability of a lawyer/law office to perform the contract. When specifying the conditions, it is worth focusing on pointing out specific experience necessary for the legal service that are contracted, and formulate one’s expectations in the conditions for participation in the procedure. This will reassure the contracting authority that in the past the lawyer performed the tasks which are of key importance from the viewpopint of the contracting authority.

Another key issue are special capabilities to be made available by a third party. The authoress believes that making available the expertise and experience of a third party (of importance due to the specificity of legal services contracts, the nature of resources that are made available and how the contract is to be performed) must be in the form of subcontracting. Direct participation of a third party in the performance of the contract ensures that the contractor’s access to the expertise and experience is realistic and the interests of the contracting authority are duly protected. This view is confirmed by the judgments of the National Board of Appeals. Therefore, if the contractor wants to use the potential of third parties with respect to “pre-qualification”, they may establish cooperation according to the rules laid down in Art. 23 of the Public Procurement Act. This lead to the contractor’s establishing direct cooperation with that entity also under the obligational relationship on the basis of which the contracting authority will be able to request implementation of the contract by all entities jointly applying for the award which have been verified in the course of a given procedure also from the formal legal viewpoint. The contracting authority will not be able to do so vis-ŕ-vis a third party whose potential is referred to by the contractor with respect to the evaluation of conditions for participation in the procedure.