Abstract

The non-performance of a public procurement contract primarily gives rise to the liability of the contractor. As it turns out, it can also leave the contracting authority liable. The contracting authority is obliged to determine the conditions for participation in the procedure, where certain technical, professional, financial or legal capacities are necessary in order to perform the contract. This serves to ensure the competitiveness of the proceedings in qualitative terms. A violation of this obligation leads to the contracting authority’s liability under public procurement law, public finance discipline, civil law and, in extreme cases, even criminal law. The article formulates practical postulates, including the suggestion that the conditions of participation in the proceedings refer to relatively constant features of contractors. Conditions concerning a contractor’s economic situation are, in this context, better than conditions concerning the financial situation. In addition, contracting authorities should ensure that contracts regulate the consequences of the contractor losing the ability to execute the contract while it is being performed.