Abstract

Article 46 Paragraph 4a of the Public Procurement Law (“PPL”) provides for the forfeiture of the bid bond if an offer submitted by a contractor, despite the contractor being asked to supplement or correct it, is still incomplete or incorrect within the meaning of Article 26 Paragraphs 3 and 3a of the PPL. Originally, the purpose of Article 46 Paragraph 4a of the PPL was to counteract collusion between contractors, manifested by several contractors, acting in agreement, submitting incomplete offers and then failing to supplement them, or supplementing only the offer from the contractor who – from among the competitors’ offers known at that time – usually presented the highest price, instead of the lowest. The remaining participants of the collusion could then withdraw from the procurement procedure without any negative consequences. It seems that now the establishment of such a penalty is also justified by the need to discipline bidders and mobilise them to carefully prepare the offer, and to compensate for the burden that the ordering party is required to carry in the case of every call to complete the documentation. Nevertheless, such a sanction cannot be applied automatically. The ordering party cannot retain the bid bond if he is responsible for the contractor improperly preparing or improving the offer, and if, for other reasons, he would not be able to choose this offer as the most advantageous one.