Public procurement – exclusion of a contractor – general comments
The grounds for exclusion from the contract award procedure (Articles 108-109 of the Public Procurement Law) are part of the subjective qualification of contractors. The grounds for exclusion, pursuant to Article 266 of the Public Procurement Law of 11 September 2019, are the same both for classic contracts with a value below the thresholds requiring a procedure with publication in the Official Journal of the European Union and those with a value equal to or exceeding these thresholds. The grounds for exclusion set out in Section II of the Act also apply to sector contracts (Article 362 of the Public Procurement Law) and to contracts in the field of defence and security (Article 395 of the Public Procurement Law).
The circumstances provided for in the Act in which the contracting authority excludes a contractor from the contract and consequently rejects its offer are intended to prevent situations in which a public contract would be awarded to an unreliable contractor. Recital 101 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement, repealing Directive 2004/18/EC indicates that contracting authorities should be able to exclude contractors that have proved to be unreliable which may cast doubt on the integrity of the contractor and thus make it unsuitable to be awarded a public contract, regardless of whether the contractor concerned would otherwise have the technical and economic capacity to perform the contract.
Mandatory and optional grounds for exclusion
The grounds for exclusion of contractors from a public procurement procedure are divided into mandatory and optional grounds. Obligatory grounds for exclusion are applied in every procedure and the Contracting Authority may not refrain from applying them. If the Contracting Authority wishes to introduce optional grounds for exclusion into the proceedings, this must be reflected directly in the Terms of Reference, although the literature on the subject indicates that information on the application of the grounds of Article 109 PPL should also be included in the contract notice.
The intention to introduce the prerequisites of Article 109 of the Public Procurement Law into the procedure has certain consequences. Firstly, the intention to apply them must follow directly from the procedure documents, and secondly, the application of optional grounds for exclusion in a given procedure obliges the Contracting Authority to apply them. As indicated by the National Appeal Chamber in the judgment of 11.04.2022, KIO 766/22, optionality manifests itself in the fact that the Contracting Authority is not obliged to verify its occurrence in the absence of relevant provisions in the contract notice or the contract documents. However, if the Contracting Authority provides for the exclusion of a contractor from the procedure if an optional premise occurs, it is always obliged to exclude such a contractor in relation to whom this premise occurs.