Misleading information in the tender offer and designation of goods

Presenting misleading information in the course of the public procurement procedure may, on the one hand, be the basis for the exclusion of the contractor on the basis of art. 24 of the Public Procurement Law, and, on the other hand, may lead to the rejection of the offer under art. 89(1) of the Public Procurement Law due to committing an act of unfair competition.

The basis for exclusion of the contractor

The contractor is excluded from the procedure if he intentionally or by gross negligence mislead the contracting authority when presenting certain categories of information. This is the information that the contractor is not subject to exclusion, meets the conditions for participation in the procedure  or objective and non-discriminatory criteria. A similar effect is reached by hiding this type of information. The same applies to the contractor who as a result of recklessness or negligence provided misleading information to contracting authority, information which may have significant impact on decisions taken by the contracting authority in the public procurement procedure.

It is assumed that providing such information concerning criteria for evaluation of offers, undoubtedly has a significant impact on decisions made by the contracting authority in the public procurement procedure. At the same time, such action can be qualified as committing an act of unfair competition.

Misleading as an act of unfair competition

An act of unfair competition within the meaning of art. 14(1) of the Act on combating unfair competition is dissemination of false or misleading information about one’s own or other entrepreneur or enterprise in order to bring benefits or cause damage.

Misleading information may refer to the contractor himself, his experience and qualifications, persons who he intends to use when performing the contract, legal or financial situation, materials used or the type of work carried out.

The condition for exclusion of the contractor or rejection of the offer is finding irregularities by the contracting authority. In order to clarify the circumstances of the case, the contracting authority may request the contractor to provide information or submit specific documents.

As an example from case law in which the question of misleading information was analysed, a case may be indicated in which, after the selection of the most favourable offer, the contractor  was alleged to provide false information on professional experience of the person who was supposed be a construction manager. The contractor declared that the construction manager has more than 8 years of experience in managing bituminous works what was required by the contracting authority. The offer was selected as the most favourable one and an appeal against the decision was lodged by another contractor who applied for the same contract, accusing its competitor of unfair behaviour. In the course of the appeal proceedings, this allegation was confirmed and the National Appeals Chamber stated that it was possible to derive information about the 8-year experience of the construction manager from the documents submitted by the contractor and their authenticity was not undermined. The appellant’s arguments were considered insufficient and the appeal was dismissed (cf. judgment of the National Appeals Chamber of 24 August 2017, file reference number KIO 1653/17).

The jurisprudence indicates that

the exclusion of the contractor due to false information may only take place if the contracting authority is able to verify the false information provided by the contractor, as well as in the situation of explicitly stating this inaccuracy. Therefore, for assessing grounds for the exclusion it is important that the information having real impact on the result of the proceedings is objectively inconsistent with reality in a way that it does not raise any doubts. Thus, the concept of ‘false information’ can be referred only to the statements of knowledge submitted in the proceedings and not to the declaration of will (cf. judgment of the District Court in Katowice of 11 April 2013, file reference no XIX Ga 179/13).

Misleading designation of goods

Misleading designation of goods offered by a contractor may also be an act of unfair competition, i.e. an act described in art. 10 of the Act on combating unfair competition, consisting in the designation of goods or services or lack thereof that may mislead customers as to the origin, quantity, quality, ingredients, performance, suitability, applicability, repair, maintenance or other relevant characteristics of the goods or services and also concealing risks associated with using them.

However, this type of act can only be committed by an entity that is responsible for the correct labelling of products (see judgment of the National Appeals Chamber of 24 February, file reference no KIO 183/16). The producer, in principle, is such an entity unless the law states that the importer or distributor is also responsible for labelling the goods.