Cases

Public tender configurations

Upon our Client’s request, we were supposed to provide the consultancy services concerning the legitimate forms of participating in the public procurement proceedings, which is the topic determining pivotal decisions of entrepreneurs intending to participate in a public tender. Are there any limitations under public procurement law restricting the submission of one’s own offer or within the framework of a consortium while acting at the same time as a subcontractor or – alternatively – as a subcontractor of several competitive contractors?

The springboard for the following in-depth deliberations are provisions of the Public Procurement Law which indicate that a contractor may file an offer exclusively within the procurement proceedings. No reference to the subcontractors opens a door for acting in a given tender on a wider scale.

Under article 26 section 2b of the Public Procurement Act the contractor may rely upon a variety of resources belonging to third parties. The entities concerned make available to the subcontractor the expertise, experience, HR support, technological potential or financial funds. The nature of legal relations between the contractor and subcontractor remains irrelevant. The number of entities to whom the access to the resources is given has not been specified as well. In compliance with the jurisdiction of the National Appeal Chamber the number and sort of subcontractors to whom the know-how and assets are provided depends on the entities’ sole discretion (compare the decision of the National Appeal Chamber as of 23 July 2013, file number KIO 1395/12; KIO 1408/12; KIO 1412/12, KIO 1413/12, KIO 1423/12).

By virtue of article 26 section 2b there are no contraindications for using the potential of an entity which in the identical public procurement proceedings submits its offer as a contractor.

The applicable provisions of law do not impose any limitations upon filing the offer and giving access to the resources to other contractors at the same time, which means that acting as a contractor and subcontractor within the identical proceedings is permissible.

An open space for interpreting legal regulations enables the entrepreneurs to make business decisions at their sole discretion as well as to shape their relationships with other market players within the same public procurement proceedings.

The entity independently decides on the number and type of legitimate configurations. Thus, that is the entrepreneur who decides whether he will a) submit an individual offer, b) file an offer together with another entity having the entrepreneur’s resources at its disposal, or c) act in the tender solely as an awarding person, i.e. subcontractor.

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