In the current crisis, many companies, including those working as part of consortia for public contracts, are experiencing serious difficulties. What should be done if one of the participants in the consortium goes bankrupt during the performance of the contract?
Under Polish and EU law, as confirmed in the case law of the European Court of Justice, it is a PRINCIPLE that the legal and material identity of contractors must be preserved at every stage of the procedure. This means both during the bidding for the contract and during its execution.
However, this rule is NOT ABSOLUTE, which does not mean that the bankruptcy of one the consortium members does not cause serious problems for the others.
It should be remembered that while there are legal possibilities for a favorable resolution of this situation, it is worth emphasizing that the consortium participants (EXCEPT INNOVATION PARTNERSHIP) ARE SOLIDLY RESPONSIBLE FOR THE PERFORMANCE OF THE CONTRACT.
In other words, the contracting authority has the right to demand its execution DIRECTLY FROM EACH PARTNER IN THE CONSORTIUM. In case law it is assumed that bankruptcy of one member does not affect the responsibility of the others.