Public procurement – exclusion of a contractor – distortion of competition due to previous engagement (art. 108 pt. 1 pt. 6 PPL)


Pursuant to Article 226 pt. 1 item. 2 letter PPL, the Contracting Authority shall reject a tender if it has been submitted by a contractor subject to exclusion from the procedure, and pursuant to Article 108 pt. 1 item. 6 PPL in connection with art. 85 pt. 1 PPL, a contractor who advised or was otherwise involved in the preparation of a procedure for awarding the contract is excluded from the procedure for awarding the contract, if competition was distorted as a result.

The basic principle of public procurement law is, expressed in art. 16 item. 1 PPL, is the principle of conducting the procedure in a manner ensuring the maintenance of fair competition and equal treatment of contractors. Accordingly, Article 85 PPL stipulates that in a situation where a contractor or an entity which is a member of the same capital group with the contractor, advised or was otherwise involved in the preparation of the procedure for award of the contract, the contracting authority shall take appropriate measures to ensure that the participation of that contractor in the procedure does not distort competition, and in particular shall communicate to the other contractors relevant information which it communicated or obtained in connection with the involvement of the contractor or that entity in the preparation of the procedure, and shall set an appropriate time limit for the submission of tenders. The measure applied shall be indicated by the contracting authority in the minutes of the procedure.

Bearing in mind another important principle of public procurement – the principle of proportionality – the legislator has indicated that in the described situation, exclusion occurs only if the distortion of competition caused by this involvement cannot be eliminated by other means, whereby, before excluding the contractor, the contracting authority provides the contractor with an opportunity to prove that its involvement in the preparation of the contract award procedure will not distort competition.

An example of recent case law of the National Appeal Chamber, in which the occurrence of distortion of competition was found, is the judgment of the National Appeal Chamber of 12.08.2022, KIO 1680/22. In the facts of this case, the Contractor prepared the “Programme Concept” for the Ordering Party, which was then used and constituted an element of the description of the subject of the contract for the execution of the road design of the S6 road section in the section Section 3 – Police – Goleniów. Additionally, the Ordering Party conducted an explanatory procedure regarding an abnormally low price, in which the contractor, justifying the amount of the submitted offer, indicated that while preparing the conception, it acquired knowledge and information regarding the subject matter of the contract, which, in the opinion of the Chamber, went far beyond the contents of the “Programme Concept”, which gave it a significant advantage over other contractors applying for the contract.

Due to the lack of proof that the infringement of competition did not take place, in connection with the summons issued by the Contracting Authority, the Chamber ordered that the contractor be excluded from the procedure and its offer rejected.