CERTIFICATION OF PUBLIC PROCUREMENT CONTRACTORS

On 16 April 2024 the Government Legislation Centre (RCL) published a draft legislative proposal titled “Act on the certification of public procurement contractors and amending certain other acts.” It would introduce a certification mechanism for contractors of public procurement effective from 1 July 2025.

A continuation of legislative work initiated by the previous government during the 2019-2023 parliament, the draft bill responds to calls from contractors for a reduction of the red tape that surrounds participation in public tenders. It is aligned with an official government document adopted in 2022, “The Procurement Policy of the State” (Resolution no. 6 of the Council of Ministers of 11 January 2022, Polish Monitor item 125), which envisages the introduction of such a certification mechanism. And it mirrors similar laws adopted by other Member States of the European Union. In this article I look at its key provisions and how it would change the existing legal situation.

Under the Public Procurement Law of 11 September 2019 (Journal of Laws 2023, item 1605; henceforth PPL), to participate in a public procurement procedure, a company must meet certain requirements, which are intended to ensure that a contractor is selected who can be relied upon to carry out the contract in an adequate manner. One of these requirements is “absence of grounds for exclusion” from public procurement, which are specified in Articles 108 and 109 of PPL. Public contracting authorities are entitled to impose additional requirements relevant to specific tenders, pertaining e.g. to the contractor’s legal capacity to do business, to perform certain types of business or professional activity, its economic or financial situation, or technical or professional expertise (Article 112, paragraph 2 of PPL). The goal is to make sure that the contractor possesses adequate capacity and resources to perform the procurement contract. Compliance with these requirements is verified by contracting authorities on the basis of documents submitted by contractors (so-called “evidence on the entity”, as defined in Article 7, item 17 of PPL). In principle, “evidence on the entity” is requested of the contractor whose bid has been determined to be the most advantageous (Article 126, paragraph 1 of PPL).

Thus, under current law, a contractor who is told by the contracting authority to submit “evidence on the entity” must assemble and submit a large batch of documents, which consumes considerable time, labor and other resources. Furthermore, the law offers no support to contracting authorities in the task of verifying these documents. Contracting authorities are left to themselves to analyze the evidence submitted by contractors, which slows down tender processes.

The proposed certification mechanism seeks to address these problems. Its aim is to streamline the verification of contractors, and thus accelerate public procurement processes,  by reducing the burden, both on the contractor (the possibility to submit just a certificate) and on the contracting authority (verification of certificates only).

Under the draft bill, contractors will be able to apply for a certificate testifying that grounds for exclusion from public procurement do not apply to them (so-called certification of absence of grounds for exclusion), or that they possess adequate capacity and resources – e.g. in terms of track record, personnel, professional qualifications, etc. – to perform a given category of public procurement contract (so-called certification of contractor’s capability).

A contractor who has obtained such a certificate will be entitled to use it in many different public procurement tenders instead of having, each time, to assemble the various documents and statements constituting “evidence on the entity” required in a given tender. The certificate will replace, and represent, these documents and statements. The effect of the certificate will be a presumption that there are no grounds for exclusion of the contractor from public procurement, and that the contractor possesses adequate capacity to perform the contract in a satisfactory manner (within the scope covered by the certificate and for the duration of the certificate). This presumption will be able to be rebutted in a given public procurement tender, but only in case justified doubts come to light, particularly doubts raised by documents presented to the contracting authority. The burden of demonstrating such doubts will lie with the entity that questions the contractor’s certification.

The certificates will be awarded for a period of between 1-3 years. They will be issued by accredited certification bodies that meet requirements set forth in relevant European regulations. All issued certificates will be entered into a Database of Certificates of Public Procurement Contractors (BDCWZP), which will be openly accessible for free.

Also, several contractors will be able to apply for a joint certificate of capability, provided that they jointly meet relevant conditions of participation specified in Article 112 paragraph 2 of PPL. A joint certificate will be able to be used by contractors only in tenders in which they submit a joint bid.

When applying for a certificate of contractor capability, it will be possible for a contractor to specify “level of capability” with respect to the condition of technical or professional expertise (Article 2, paragraph 2, item 4 of PPL). Level of capability in this case will refer to the possession of a certain level of technical or professional expertise (in terms of e.g. education, professional qualifications, experience/track record, technical capacity, or quality assurance systems).

Crucially, from the point of view of construction market actors, the draft bill stipulates that the competent minister in charge of economic affairs will adopt a regulation specifying levels of capability relating to public procurement of construction works, taking into account the need (a) to assign requirements to respective levels of capability that are consistent with the conditions of participation specified in Article 112, paragraph 2, item 4 of PPL, and (b) the need to standardize these requirements.

As noted, the proposed date of entry into force of the new law is 1 July 2025.

Jacek Choromański, attorney-at-law
Originally published in PMR Construction Insight: Poland, No. 7 (280), July 2024