Is it possible to change the leader of the consortium in the course of the procurement process?

Changing the leader of a consortium has no legal consequences in a situation where the composition of the consortium itself has not changed from the bidding stage. This was the position taken by the National Appeals Chamber in its judgment of July 9, 2018, issued in case number KIO 1232/18.

In the justification of the judgment, the Chamber pointed out that the conclusion of a consortium agreement is based on the principle of freedom of contract, and its construction is based on the acceptance by its members of an obligation to cooperate to achieve a common economic goal by undertaking activities specified in the agreement. In addition, taking into account that contractors jointly applying for award of the contract are obliged to appoint a proxy to represent them in the proceedings and conclude a public procurement agreement, the actions of the ordering party with respect to the proxy are effective with respect to all contractors jointly applying for award of the contract.

In view of the above, in a situation where an appeal is brought by a consortium consisting of entities that jointly submitted a bid, and the power of attorney for the consortium leader was properly granted, it should be concluded that the appeal was brought by an entity with the authority to do so – regardless of the change of the entity authorized to represent the consortium.