The Principle of Fair Competition in the Description of the Subject-Matter of Procurement - an Analysis of the Case Law of Poland and of the EU
The Principle of Fair Competition in the Description of the Subject-Matter of Procurement - an Analysis of the Case Law of Poland and of the EU

Summary/Abstract: The topic of the paper concerns the principle of fair competition in the description of the subject-matter of procurement. In essence, the principles indicate the direction of interpreting legal provisions and applying the law. Fair competition features among the fundamental principles defining the public procurement system and it plays a key role in the proceedings for the award of public procurement. In Article 7 item 1, the Public Procurement Law imposes on the contracting authority an obligation to prepare and conduct contract award procedures in a manner ensuring fair competition as well as equal treatment of tenderers. The author considers actions or omissions of the contracting authority that should be determined by the guarantee of fair competition in description of the subject-matter of the contract. The author analyses the necessity of eliminating from the description of the subject-matter of the contract all phrases which could point to a specific tenderer, which would eliminate specific tenderers by rendering it difficult for them to submit their offers, or which would cause a situation where one of the interested tenderers would be more privileged than others. The article contains an analysis of the current regulations, including opinions of the judiciary and academics.

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