Impact of the description of the subject of the contract on the circle of potential contractors .

Almost every description of the subject of the contract affects the group of potential contractors. At the same time, the Public Procurement Law prohibits describing the subject of the contract in a way that could hinder fair competition. So how to comply with the law, and in particular with the principle of competitiveness and equality, in a situation where the subject of the contract should meet certain features expected by the contracting authority, which thus excludes some contractors or their groups?

The order is not for everyone.

It should be clearly stated that there is no obligation on the part of the contracting authority to ensure that all entities operating on the market in a given industry are able to perform the subject of the contract. The contracting authority has the right to define the subject of the contract in such a way that it meets its specific needs justified by objective factors. This is an entitlement towards contractors, but it results from the obligation imposed on the contracting authority, i.e. special care for rational spending of public funds.

Link with the subject of the contract and proportionality.

The contracting authority should specify in the description of the subject of the contract the required features of supplies, services or works, provided that these features should be related to the subject of the contract and, what is extremely important, be proportionate to its value and objectives. It should therefore be noted that in the description of the subject of the contract, the contracting authority should include only objectively justified requirements as to the subject of the contract. It is worth looking at the created description of the subject of the contract even before its publication through the prism of proportionality, i.e. answering the question whether the degree of detail of individual requirements is necessary to achieve the objectives intended by the contracting authority.

Keeping balance .

Preparing an accurate description of the subject of the contract while observing the principle of fair competition is difficult, but possible. The solution to this specific conflict is to describe the subject of the contract in a reliable and professional manner and include only actual and justified needs in it. Therefore, the most important thing is to maintain a balance between the actual needs of the contracting authority and the requirements set out in the description of the subject of the contract.

In the next part, we will answer the question: Can the description of the subject of the contract contain a trademark?