Zmiany składu konsorcjum w postępowaniu o udzielenie zamówienia oraz na etapie wykonywania zamówienia
Changes of the composition of a consortium in tender procedures and at the initial stage of contract performance

Summary/Abstract: The issue of admissibility of changes and transformations within the composition of the consortium (agreements of entities which jointly apply for a contract) in tender procedures and at the stage of performance of a contract in the face of lack of legal regulations, both in the EU and Poland, is the source of considerable interpretation doubts. Therefore, the doctrine and judicature have worked out a number of regulations concerning the compliance of such changes and transformations with the rule of equal treatment of contractors and protection of competition. Admissibility of a party change at the stage of tender proceedings is exceptional and is subject to fulfillment of a condition requiring that the party concerned participate in the proceedings as at the day of submission of bids or applications. In result, extending the composition of a consortium at a later stage or changing its composition is not possible. The situation of transformation by general succession of a member of a consortium in proceedings or at the stage of contract performance should be assessed from the perspective of the entirety of rights and obligations of civil law nature. The fact of succession should not, as a rule, blight the result of a positive qualification in the proceedings of the predecessor of the general successor or shatter the status of a contractor. At the stage of contract performance changes resulting in the acquisition of a consortium’s debt under a public procurement contract shall be deemed inadmissible. This type of transformations may result in the distortion of the results of the proceedings. However, as regards maintaining accountability for joint performance of a contract by current contractors, it is possible for new parties to assume a joint debt cumulatively. In the face of numerous doubts related to the issue it is justified to apply for enactment of a specific legal regulation in this respect.

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