In public procurement procedures, especially when it comes to works, consortia of tenderers often appear as economic operators who have joined forces to submit a joint bid.
According to Article 50 of the Public Procurement Act (ZJN), the contracting authority may not require a consortium of economic operators to have a specific legal form at the time of submitting the bid or request to participate. However, it may require them to assume a specific legal form after the contract is awarded, to the extent necessary for the proper performance of the contract.
The mutual rights and obligations of the economic operators are regulated by an agreement which defines the roles of each member, ensuring efficient communication with the contracting authority and smooth execution of the procurement subject.
But what happens when a consortium of tenderers wants to file an appeal?
Since only the consortium that submitted the bid may act as the appellant, individual members of the consortium do not have the right to submit an appeal independently. In other words, if one of the consortium members has reasons to appeal, they cannot act alone in the process as they do not have legal interest. This means that the appeal must be submitted jointly by all members of the consortium. This interpretation is supported by the High Administrative Court rulings UsII-498/19-6 of October 24, 2019, UsII-106/23-6 of July 19, 2023, and UsII-178/23 of November 15, 2023.
Author: Hrvoje Karažija, consultant at AVELANT d.o.o.
