Abstract

The introduction under the new EU directives of a European Single Procurement Document (ESPD) as the preliminary evidence that the operators applying for a public contract meet the requirements, and the duty to submit traditional documents being limited to the winning bidder as the ultimate verification of its credibility in connection with the conclusion of the final contract affects the contents of the tendering obligation to contract. Submission of a single procurement document together with an offer (application), similarly to the establishment of a necessary tendering security, constitutes an additional formal requirement for bidders under the pain of exclusion and rejection of the offer. Therefore, it should not be possible to amend that document after the bidding deadline, whereas much lesser reservation concern the possibility of its clarification or even rectification after that deadline. In turn, the winning bidder should be invited to submit traditional document, by a certain deadline, before the obligation to contract becomes enforceable, with an additional period for clarifying and rectifying the submitted documents Failure to fulfil those duties should statutorily clearly made equivalent to the causes preventing the conclusion of the final contract, justifying forfeiture of the tendering security (Art. 46.5.5 of the Public Procurement Act) or entitling the contracting authority to demand financial compensation under general rules. That is why the contracting authority should now inform those concerned about this in advance in contracting terms under information on “pre-contractual formalities” (Art. 36.1.14 of the Public Procurement Act). It does not seem justified at the moment to continue with the practice consisting in demonizing the importance of the authorization to submit a tender to the extent that it should be absolutely submitted together with a tender, and all the more so amended before the best tender is selected. Therefore, it is not so much necessary to request an authorization to prepare a tender but an authorization to conclude the final contract, and at that not from all tenderers but only from the winning bidder, which is in line with the general idea of simplifying, deformalizing and speeding up the public procurement procedure.