Abstract

The jurisprudence on public procurement matters fall into two separate viewpoints concerning the effect of the expiry of the bid validity period in a public tender. The first of them states that this does not prevent the offer from being chosen, the second one that the offer expires after the binding date, i.e. it is no longer legally binding, which means that it can no longer be examined and evaluated. In response to such divergent case-law, the CJEU stated that an offer cannot be removed from the proceedings without clearly indicating the grounds for its elimination in the tender documentation, or giving a clear legal basis. At the same time, the CJEU assessed that the serious divergence in case-law proves that there are no clear and unambiguous grounds for eliminating offers after the binding date. As a result of this ruling, there have been certain judgments from Polish courts stating that the provisions of the Public Procurement Law are still not clear (despite it being amended), and which have prevented the elimination of offers whose binding term has expired. Some views – including the views of the president of PPO – indicate the need to eliminate such offers once they are no longer binding. Therefore, this must be cleared up by the legislator, who will undoubtedly order the elimination of such offers in accordance with the civil law view of the effect of the expiry of the bid validity period.