A procurement contract may be rendered void (by a constitutive court judgment) if the contracting authority:
- used the negotiated procedure without publication or single-source procurement in breach of the provisions of the PPL;
- failed to place the contract notice in the Public Procurement Bulletin or submit it to the Publications Office of the EU;
- concluded the contract in breach of the standstill period, if this prevented the NAC from examining the appeal before the conclusion of a contract;
- prevented contractors who were not admitted to participate in a dynamic purchasing system from submitting requests to participate in that procedure or prevented the contractors who were admitted to participate in a dynamic purchasing system from submitting tenders in a contract award procedure conducted within the framework of that system;
- awarded the contract under a framework agreement prior to the expiry of the standstill period, to the prejudice of the contractors, with whom a framework agreement had been concluded;
- applied the request-for-quotation in breach of the provisions of the PPL;
- concluded an in-house procurement contract in the single-source procurement procedure before the lapse of a 14-day stand-still period starting from the day following the publication of the information about the intention to conclude the contract.
If one of the aforementioned situations occurs and a public procurement contract has already been concluded, when examining an appeal, the NAC may:
- invalidate the contract;
- invalidate the contract with regard to the unfulfilled obligations and impose a financial penalty in justified cases, in particular when return of benefits provided for under the contract is impossible; or
- impose a financial penalty or shorten the duration of the contract if it is in the public interest, in particular in the field of defence and security, that the contract is upheld.
The financial penalty which the NAC may impose on the contracting authority can amount up to 10% of the contractor’s remuneration provided for in the contract, taking into account the type and scope of the violation.
When stating a violation of a standstill clause that was not connected with the violation of any other provision of the PPL, the NAC may impose on the contracting authority a financial penalty in the amount of up to 5% of the contractor’s remuneration provided for in the contract, taking into account all important circumstances relating to the award of the contract.
Additionally, the President of the Public Procurement Office (PPO) may apply to the court for the invalidation of the contract if any actions or omissions on the part of the contracting authority, in breach of the provisions of the PPL, had or might have had an influence on the outcome of the tender.