The Public Procurement Agency maintains a list of the economic entities for which it has been proved that they have committed violations in the assignment or execution of public procurements according to Art. 57, para. 4 of the Public Procurement Act.
The violations are under Art. 54, para. 1, item 5, p. a) of the Public Procurement Act and under Art. 55, para. 1, item 4 of the Public Procurement Act.
The violation under Art. 54, para. 1, item 5, p. a) concerns cases where the participant has submitted an untruthful document concerning the absence of a declared ground for exclusion or a declared fulfilment of the selection criteria.
The violation under Art. 55, para. 1, item 4 of the Public Procurement Act concerns non-performance of a public procurement contract or concession, leading to dissolvement or early termination of the contract, payment of compensations or other similar sanctions, in the amount of more than 50 percent of the contract value.
The entry in the list is made on the basis of information sent by the contracting authorities and on the basis of an act depending on the infringement, namely:
- For violations under Art. 54, para. 1, item 5, p. a) – decision of the contracting authority for removal from the procedure;
- For violations under Art. 55, para. 1, item 4 – court or arbitration resolution.
The list is only informative, and the Public Procurement Agency does not perform a substantive verification check of the sent documents, which is specified in the methodological instruction MU-10 of July 9, 2020 of the Public Procurement Agency. That is, the entry in the list is not an independent ground for removal from the public procurement.
Each contracting authority is obliged to provide evidence that justifies its decision to exclude from the public procurement. Contracting authorities are responsible for the lawful award of a public procurement and should require from the previous contracting authority, which has requested the inclusion of the economic operator in the list, all documents that are not publicly available but are relevant to the specific case.
Economic operators have the right to present measures that prove their reliability. The right to present the measures is regulated in Art. 56, para. 1 of the Public Procurement Act. That is, each contracting authority is obliged to provide an opportunity to present the measures before making a decision on removing the economic operator from the procedure. The right to present the measures is bound by an obligation for them to be considered by the contracting authority and taken into account before the removal of the economic operator.
For their part, economic operators should always describe extensively the circumstances regarding each terminated contract during the previous three years, regardless of the reasons that led to its termination, as the term is regulated in Art. 57, para. 3 of the Public Procurement Act.
In case the contracting authority deems that the submitted measures are sufficient to ensure the execution of the specific public procurement contract and the reliability of the economic entity, the contracting authority shall not exclude the entity from participation in the public procurement, even if the entity is listed in the list. The assignor is obliged to take into account the gravity and significance of the circumstances related to the violation. The contracting authority is obliged to objectively and impartially investigate and evaluate the behaviour of the economic operator regarding the previously terminated contract, and this assessment must be consistent with the terms of the specific contract.
In all cases, the contracting authority must state in the ranking decision, the reasons for not removing or removing the economic operator and accepting or rejecting the measures taken, and the economic operators have the opportunity to appeal against this assessment.