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permits the exclusion of a contractor where, in the three years before the tender process began, the ordering party has withdrawn from or terminated a contract with that contractor in circumstances for which the contractor is responsible and the value of the order that was not performed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