Table of contents:
- Is a civil partnership considered a consortium?
- What experience can a partner in a civil partnership refer to?
Under the Act of September 11, 2023, Public Procurement Law, partners in a civil partnership are treated as joint bidders for the purpose of obtaining a contract. This has certain consequences, including the examination of grounds for exclusion from participation in the proceedings, as well as the assessment of experience.
Is a civil partnership considered a consortium?
In one of the cases considered by the National Appeals Chamber, one of the Bidders attempted to convince the Chamber that current partners in a civil partnership can only refer to experience to the extent that they themselves executed contracts, excluding that part of the contracts executed by former partners.
The Chamber did not share this position, indicating that although for the purposes of public procurement law, a consortium and civil partnerships are considered similar, differences between a civil partnership and a consortium cannot be ignored. The similarity lies in the fact that since a civil partnership does not have legal personality, and the legal subject of rights and obligations are its partners, they are treated as joint bidders for the purpose of obtaining a contract. According to the Chamber, it is necessary to differentiate between the formal perception of a civil partnership from the perspective of public procurement procedures and the assessment of the resources that partners possess within this partnership. While it can be agreed that entrepreneurs conducting business activities in the form of a civil partnership should be treated as joint bidders for the purpose of obtaining a contract under the Public Procurement Law, it is necessary to emphasize the aspect in which such an approach is presented in case law.
What experience can a partner in a civil partnership refer to?
However, issues related to the execution of contracts under the partnership agreement and the acquisition of experience related to this differ. In the Chamber’s assessment, the carriers of the experience gained under the partnership agreement are indisputably the partners of that partnership. If the partners of a civil partnership, within the scope of the partnership’s activities and in line with its essence – striving to achieve a common economic goal, have carried out a specific task, it cannot be argued that in future proceedings they can only refer to the experience gained personally, excluding the experience of those partners who have left the partnership and are currently not bidding for the contract. From the perspective of the acquired experience, the partnership can be perceived as its acquirer since its partners collectively executed the agreement, acting to achieve a common economic goal, utilizing common assets, and collaborating in the management of partnership affairs.
Therefore, the Chamber did not share the Appellant’s position that for the purposes of meeting the participation requirement in the proceedings, each of the two current partners was obligated to “distinguish their own experience” and refer only to that experience. As indicated above, this experience is the experience of all partners collectively, and distinguishing it in terms of value and scope in relation to each of the partners would be artificial and even impossible. Consequently, partners continuing their activities within a given civil partnership may refer to the entirety of the experience gained within that partnership.
Judgment of the National Appeals Chamber dated July 7, 2023, KIO 1773/23.