Abstract

The article contains an in-depth analysis of the importance and the role of a consortium, understood as an institution used in the public procurement system. The purpose of the presented article is to point out to transaction parties the aspects of joint bidding in public procurement procedure that may ultimately determine the success of a decision to submit a joint tender. The author starts by pointing to the importance of the aggregation principle for consortium members in order to show that they meet the requirements for participants in the procedure, or its implementation and practical application, based on the national case-law.

In disputes before the National Chamber of Appeals, it is often assessed whether or not decisions on joint tenders, and agreements entered into between consortium members were non-competitive or aimed at distorting competition in the proceedings. If this fact were to be proven, then the joint bid may be disqualified and the consortium members must be aware of this when entering into the consortium. The assessment was presented also against various factual backgrounds and provisions of specific acts, including the Healthcare Institutions Act, the VAT Act and the Act on Competition and Consumer Protection. The paper contains examples from case law indicating the need to take a wider approach to bids submitted jointly in procurement procedures, allowing bids for a limited part of an order, as well as describing illicit attempts to use the institution of consortium in order to circumvent this limitation. In the case of offers submitted for various parts of an order, the presented analysis discusses the systematic issue of understanding the procedure as a single procedure during which relations between companies from a capital group are assessed in terms of their observance of fair competition principles in the procedure, regardless of the parts for which the companies have submitted bids. Finally, the issue of consortium members’ liability for failing to perform or for improperly performing the contract was also analysed, as well as their possible participation in subsequent procedures, whether as a contractor, a company sharing its potential or as a sub-contractor.

Keywords:

Potential aggregation principle, distortion of competition and an act of unfair competition, a capital group, partial offers, liability of consortium members for the performance of a contract