Specyficzne problemy prawne i praktyczne związane z reprezentacją konsorcjum wobec zamawiającego w toku realizacji umowy w sprawie zamówienia publicznego
The specific legal and practical issues related to a representation of a consortium to the contracting authority during the implementation of the agreement on public procurement

Summary/Abstract: This article concerns the special principles regarding the representation of the consortium during the implementation of the public procurement when an agreement on public procurement contains the requirement for consortium members to appoint an attorney-in-fact authorized to represent them to the contracting authority, and moreover data of this attorney-in-fact are specified in this agreement. This study focuses, in particular, on the issue of the possibility of making changes in the scope of representation determined in such way at the stage of execution of the agreement. The analysis of the issue leads to the conclusion that a change of the entity appointed by the consortium as the attorney-in-fact does not constitute a significant amendment of the provisions of the concluded agreement in relation to the content of the tender, and therefore the content of art. 144(1) of the Public Procurement Law (PPL) is not an obstacle to execute the change. Therefore, it always may be carried out under mutual agreement of the parties. It may be recognized it is possible to unilaterally revoke such power of attorney for important reasons, justified with protection deserving interest of the represented person or related to the content of the legal relationship being the basis of power of attorney, even in the event of an absence of consent to such change from contracting authority. In the absence of important reasons it should however be stated, that the pacta sunt servanda principle holds a decisive value and if the economic operators agreed to conclude with the contracting authority the contract which contains provisions concerning the appointment of a given attorney-in-fact, who is going to represent them within the specified range, then this provision binds them. Thus, they cannot bring about the change without the consent of contracting authority.

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