In accordance with art. 36a paragraph 1 and 2 of the Public Procurement Law, the contractor may entrust a subcontractor with the execution of some parts of the contract, and he/she can stipulate, in the specification concerning essential terms of the contract, the obligation to perform key parts of the contract for construction works or services in person as well as the work related to distribution and installation, as a part of a delivery. As National Board of Appeal indicated in the judgement of May 21-st, 2014 (reference number KIO 923/14) the limitation on subcontracting could be treated as an exception to the rule. It can take place only in some exceptional circumstances, resulting from the specific nature of the order. Limitation on subcontracting in public procurements has an influence on limitation of a group of contractors that can apply for public procurements, and thus it can reduce the competitiveness of proceedings. The possibility of subcontracting is a principle, and the limitation of the contractor’s right can be accepted only in excused events justified by the specificity of the order. these special circumstances should be proven by the ordering party.

The foregoing information was confirmed by the National Board of Appeal in the judgement issued after the amendment of the Public Procurement Law (PPL), NBoA indicated that the legislator, by permitting the contracting authority to limit the number of subcontractors in the implementation of the contract, unfortunately did not include a legal definition of the key parts of the contract. Therefore, it should be assumed that when the contracting authority would like to use art. 36a paragraph 2 subparagraph 1 of the PPL, he/she will have to explain to the contractors, in the Terms of Reference, what should be perceived as “key parts of the contract” and provide justification for this decision. According to the definition, “key” means important, basic, main, prime.

Therefore, according to NBoA, the basis for classifying a given item as a key element listed in the Terms of Reference, and performed by the contractor in person, is the occurrence of objective circumstances justifying the change of the status of the contract, and moreover the element is crucial for the correct performance of the contract. In order to consider a given part of the order as a crucial one, thus limiting the possibility of using third-party resources and obliging the contractor to perform it in person, it is not enough (as in this proceeding) to define the order as important strategically. The public procurement law does not diversify the requirements determined for the contractors depending on the nature and the rank of the contract itself. It should be assumed that every order financed from public funds should be prepared as good as possible; it depends on many circumstances connected with both with the correct description of the contract, as well as ensuring the proper and high level of investor’s supervision by the contracting authority. It cannot be replaced by unreasonable participation conditions, which could eliminate from the proceedings many contractors being able to perform the order (judgement of NBoA of September 21-st, 2017, file no. KIO 1837/17).