Exclusion of a contractor from participation in a public procurement procedure as a result of contract termination for reasons attributable to them

Abstract

The article describes obligatory and optional grounds for excluding a contractor on the basis of Polish Public Procurement Law, taking into account the jurisprudence and views of the doctrine. The attention is paid to the optional ground based on art. 24 sec. 5 point 4 of the Polish Act of January 29, 2004, Public Procurement Law, according to which the contracting authority may exclude from the procurement procedure contractors who, for reasons attributable to them, failed to perform or to a significant extent improperly performed a prior public procurement contract or concession contract concluded with the contracting authority, which led to termination or awarding compensation. In order to be able to use the institution, the contracting party must include an appropriate clause in the contract, providing for the possibility of terminating the contract or awarding damages due to contractor’s non- performance or improper performance of the contract, which is a common practice on the Polish public procurement market. However, in the event of such a clause, the contracting authority is obliged to apply it if the condition is met. The article also describes the self- cleaning institution, derived from art. 57 sec. 6 of Directive 2014/24/EU. The self-cleaning procedure can protect the contractor from being excluded from future tenders. However, In order to take advantage of self-cleaning, the contractor has to admit that non-performance or improper performance of the contract is their fault. Keywords: Exclusion; Contractor; Agreement