Abstract

The principle of proportionality in public procurement is of key importance for the correct structuring of procedural contractual requirements. It is a principle of good measure. In particular, on one hand it allows the contracting authority to evaluate tenders of contractors capable of performing the contract, while on the other protects contractors against arbitrariness of contracting authorities’ decisions. The conditions required of the competitors and how they are evaluated must be connected with the subject of the contract (objectivized) and proportionate to that subject. The proportionality test with respect to the conditions required of the contractors requires taking into account a number of factors and circumstances decisive for considering a given requirement as justified and necessary to select a contractor really capable of performing the contract. The evaluation of whether the contractors referring to the resources of other business operators and consortium members meet the conditions has to be additionally analysed. The proportionality principle forces out a shift of focus from the formal side of the actions of the contracting authority preparing tender documentation onto the examination of economic aspects of the decisions to be made. The individual conditions should be adequate to the actual ones (technical, organizational and economic) as regards the implementation of the planned public contract.