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EC Notice on How to Tackle Collusion in Public Procurement:

A Step Forward or a Stall for Time?

Wojciech Hartung, Katarzyna Kuźma

DOI https://doi.org/10.21552/epppl/2021/2/5

Keywords: collusion, EC Notice, exclusion ground, sufficiently plausible indications, contracting authority

This article analyses the European Commission (EC) Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground of 15 March 2021. The grounds and rules for the exclusion of contractors from participation in public procurement procedures adopted in the 2014 Directives raise many interpretation questions of the contracting authorities and contractors on the one hand and the bodies adjudicating on public procurement in EU Member States on the other hand. One of them is the ground referred to in Article 57(4)(d) of Directive 2014/24/EU. Its correct application in practice should contribute considerably to fighting collusive practices in public procurement. It seemed that the long-awaited EC guidance concerning the said exclusion ground will help answer questions of the market and thus contribute to increased legal certainty upon its application. However, this was not the case.
Keywords: collusion; EC Notice; exclusion ground; sufficiently plausible indications; contracting authority

Dr Wojciech Hartung, Counsel in the Infrastructure and Energy Practice at the Domański Zakrzewski Palinka law firm in Warsaw; lecturer at postgraduate public procurement courses at Nicolaus Copernicus University (Toruń). Katarzyna Kuźma, Partner in the Infrastructure and Energy Practice at the Domański Zakrzewski Palinka law firm in Warsaw, head of the public procurement team. For correspondence: <mailto:Wojciech.Hartung@dzp.pl> and <mailto:Katarzyna.Kuzma@dzp.pl>.


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