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Keywords

K21, restrictive agreement, anti-competitive object or effect, consortium bidding, economic justification of consortium bidding in public procurement procedure

Abstract

This paper reviews issues arising when assessing the objectives of consortium participation in procedures for the award of public contracts. For economic operators, a bidding consortium is a legally acceptable form of participation in public procurement procedures. The essence of consortium bidding is a joint bid for a contract submitted and agreed upon by the members of the consortium. However, agreeing on how to bid by multiple economic operators entering a given public contract procedure is deemed restrictive to competition. It is thus crucial to determine the circumstances under which the submission of a joint bid is to be deemed anti-competitive. This is so in particular when the admission of the consortium to the procedure has not been subject to any conditions, such as the failure of the members to individually comply with the conditions of the participation in the public procurement procedure. Given the above, it is essential to define when the bidding consortium agreement is anti-competitive. These issues give rise to controversy, especially when it comes to assessing the consortium’s goal to participate in the procedure in a situation where it is objectively possible for the contract to be performed independently by each member of the consortium The paper focuses on the nature of bidding consortiums and on the assessment of the objectives of their participation in the procedure. The Author also presents reasons that can justify a consortium’s participation in public procurement procedures.

First Page

36

Last Page

49

Page Count

13

Publisher

University of Warsaw

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