Grave Professional Misconduct of the Tenderer
According to the Section 54 of the Public Procurement Act the contracting authority may exclude from participation in competitive bidding a candidate or tenderer, who has been guilty of grave professional misconduct proven by any means, which the contracting authorities can demonstrate. The Act does not define more specifically what the term “grave professional misconduct” mean or the means, by which this kind of misconduct can be proved.
The Market Court held in its decision 938/14, that the contracting authority had the right to exclude the tenderer from participation in competitive bidding, due to the inappropriate past behaviour of the tenderer’s representative during the previous contract period. The representative had among other things threatened the employees of the contracting authority. The contracting authority argued that this had led to a serious lack of trust between the parties.
The Market Court held that any breach of a contract could be regarded as “professional misconduct” in one’s actions. However, this does not automatically mean, that any professional misconduct could be determined to be “grave” as the law requires. The Market Court also held that the contracting authority has to be able to demonstrate the grave professional misconduct.
The documents, which the contracting authority had based its decision on, were two minutes of the previous contract and a reclamation made by the contracting authority to the contractor. The Market Court held that there was no reason to doubt the truthfulness of these documents. Moreover, the Court held that many conflict often includes sharp and edgy language, but the tenderer’s past behaviour during the previous contract period had clearly gone beyond the language that might still be considered to be acceptable. Therefore, the Market Court held that the tenderer had been guilty of grave professional misconduct and the contracting authority’s decision was in accordance with the Public Procurement Act.