Misleading the Ordering Party is one of the obligatory basis for excluding the Contractor from the proceedings. What is important, it is more often used by the Contractors who try to prove that the competition misleads the ordering party by including incorrect information in the offer.

It is significant that the consequences of misleading shall be incurred by the Contractor, regardless the fact whether the misleading information was included in his declaration or in the declarations or documents of the third entity on whose resources the Contractor depends. The above was confirmed by the sentence of the National Chamber of Appeals of 7th June 2017 in which the Chamber indicated that the possible consequences of giving incorrect information by this entity shall be incurred only by the contractor who will refer to the resources of this entity (sentence of the National Chamber of Appeals of 7th June 2017, KIO 1004/17).

It is also important that according to the Chamber in the case of misleading the Ordering Party, it is unauthorized to call this contractor to fill in the documents based on art. 26 par. 3 of the Pzp act. The Contractor who has presented the information referred to in art. 24 par. 1 point 17 of the Pzp act is not called to fill in the documents based on art. 26 par. 3 of the Pzp act.

In the sentence of 7th June 2017 the Chamber also underlined that the fault for misleading the ordering party must be understood not only as the willful fault but also as an inadvertent one – the recklessness and negligence, while the due diligence shall be evaluated according to art, 355 of the Civil Code. The disposition of art. 24 par. 1 point 17 of the Pzp act is used not only in the situation of the effective misleading but also when the activity of the contractor may lead to it. The National Chamber of Appeals, which evaluated the contractor’s activity, has decided that this activity may be regarded barely as the negligence and indicated that the contractors taking part in the proceedings are subject to the increased diligence referred to in art. 355 § 2 k.c.