Z problematyki odpowiedzialności „kierownika zamawiającego” za naruszenie dyscypliny finansów publicznych przy udzielaniu zamówień publicznych

Abstract

The issues of the Head of the Awarding Entity’s responsibilities for the violation of public finances discipline while awarding a public contract. The statutory basis of responsibility for violating the discipline of public finances cause many practical difficulties with regard to managers of entities awarding a public contract. An insufficient definition of a “prohibited act” (which either provokes the necessity of using an extended interpretation of the rules or forces to renounce from punishing the accused for a harmful act - which however have not been clearly forbidden by the law) is the essential drawback. Within the scope of disciplinary responsibility, similarly to penalization of crimes, constitutional rule nullum crimen sine lege is in force. Difficulties refer mainly to the term of “violating the discipline of public finances” itself, to responsibility of persons who were trusted with finances or public contracts, to liability of people who manage funds which were entrusted to the non public sector subjects, as well as to the responsibility of the people awarding a public contract with omission of procedures prescribed by the law. Thus, there is a need of legislative intervention in this area. Improvement both of the practice and of jurisdiction’s quality will be sufficient in the matter of responsibility in reference to other disciplinary infringement, especially to expend donations against their aim, to assume obligations without authorization, to pay after the due date, to mitigate the contractual penalties, to describe the object of the contract in discriminative way, to violate the equal treatment rule (impartiality of the awarding entity) and to allow the infringements which influence the outcome of the tendering or other procedure of awarding the public project.