A contractor may be excluded from the public contract award procedure if, for reasons attributable to it, it has failed to perform or has performed improperly a previous material obligation resulting from the public procurement contract or a prior concession contract. Such breaches may result in termination of or rescission from the contract, liability for damages, vicarious performance or exercise of rights under the statutory warranty for defects.
Practical aspects of applying Article 109 section 1 item 7 of the Public Procurement Law are discussed by Grzegorz Wąsiewski, PhD, in the bi-monthly industry magazine “Zamawiający. Zamówienia Publiczne w Praktyce” (EN: Contracting Authority. Public Procurement in Practice). Grzegorz Wąsiewski explains in which situations the application of the above provision may have an actual impact on the contractor's situation, discusses the latest case law and points out the practical consequences and risks associated with its application.
“The most doubtful situations are those where there is a dispute between the contractor and the contracting authority regarding proper or improper performance of the contract (e.g. contractual penalties have been challenged by the contractor before the civil court). It has been accepted in the case law that contractors should inform contracting authorities about such situations in the ESPD, while, at the same time, providing the relevant explanations so that the next contracting authority can independently assess the contractor's reliability on this basis.”
The article appeared in the November & December issue of the magazine. Subscription: LINK