Abstract

If a public procurement tender leads to the most favourable offer being selected, and the selected tenderer is duly notified, both the contracting authority and the selected contractor are required to then conclude the contract. If one of the parties avoids this obligation, the other party is entitled to demand that the contract be entered into. However, filing such a claim is their right, not an obligation. If the entitled institution or person does not exercise this right, it may demand compensation for any loss resulting from the negative effect of the contract not being concluded. A claim for damages is generally always brought by the contractor, and by the contracting authority in the situation where the contractor did not make a bid bond. If, on the other hand, a contractor who has paid a bid bond evades the conclusion of the contract, the contracting authority would retain the bid bond and consider it compensation for any losses incurred.

If the selected contractor avoids the conclusion of the contract, the contracting authority may choose the most advantageous out of the remaining offers. In literature and case law, there is no consensus on whether or not an offer may be selected if it has expired. Therefore, it is legitimate to postulate that this issue should be resolved by the legislator.