A newly added provision of Polish Public Procurement law has
been referred to the ECJ by the National Appeal Chamber.
The provision permits the exclusion of a contractor where, in the
three years before the tender process began, the ordering party has
withdrawn from or terminated a contract with that contractor in
circumstances for which the contractor is responsible and the value
of the order that was not performed amounted to at least 5 % of the
contract value.
The ECJ is to rule whether this is compatible with a directive
provision stating that the contractor can be excluded if he has
been guilty of grave professional misconduct proven by any means
which the ordering party can demonstrate.
The ECJ must decide in particular whether the contractor's
conduct in these circumstances amounts to professional misconduct,
and whether it is grave.
Law: Article 24 par. 1 item 1a), Public Procurement Law;
Article 45 par. 2 item d, Directive 2004/18/EC
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The original publication date for this article was 27/09/2011.