Abstract

The whole purpose the public procurement process is to enter into an agreement. This purpose is achieved both through public procurement procedures and during negotiations.

None of the parties can, without any consequences, cause the agreement not to be signed, either by withdrawing from the obligation to enter into the agreement while the offer submitted by a contractor is valid, or by negotiating in bad faith. On the other hand, entering into an agreement within the tender procedure is conditional upon the existence of an offer on the date of making a selection, within the meaning of the civil law, namely the validity term of the offer must not expire before the date of making the selection. Opinions expressed from time to time in the jurisprudence, whereby this status is not necessary for an offer to be selected, are contrary to the provisions of civil law. The unfortunate interpretation of the judgement by the CJUE in case file No C-35/17 only serves to spread legal uncertainty, which must be explained and removed by a relevant amendment introduced by the legislator.

If party of the procurement procedure abstain from the obligation of entering into an agreement, the other party submits claims. In each case these claims are to issue a ruling replacing the declaration of intent, to withhold the tender bond (in the case of the ordering party) or the demand of the double amount of the tender bond (in the case of the contractor), as well as compensation claims.