Public procurement: Once again, a criminal record certificate should come from the contractor’s home country
In public procurement proceedings initiated on or after 22 September 2023, contractors may again submit criminal record certificates according to the residence of the person referred to in the certificate.
The regulation of the Minister of Development and Technology of 3 August 2023 amending the regulation on subjective evidence and other documents or statements that a contracting authority may require from a contractor enters into force on 22 September 2023. Among other things, it amends §§ 4(1)(1) and 4(3) of the existing regulation. In both of those provisions, additions are introduced stating that information or a document to be submitted must come from the country of residence of the person to whom the information or document applies.
Thus, as of 22 September 2023, we are returning to the rule in force before the Public Procurement Law of 11 September 2019, that any natural person required to submit information about his or her criminal record should consult the relevant registry or other authority in his or her country of residence.
Under current law, in force since 1 January 2021, the place (country) where a certificate regarding an individual’s criminal record is to be sought is the country of the contractor’s registered office, not the country of residence of the individuals being vetted for lack of a criminal record in public procurement procedures. This ensured that a contractor whose authorities included third-country nationals did not have to obtain criminal record certificates from other jurisdictions. This was a significant convenience, but sometimes it also posed practical problems, as criminal records in the country of the contractor’s registered office did not always allow for issuance of a certificate for a third-country national.
The new §4(3) states: “If in the country where the contractor has its registered office or the person to whom the document relates has his or her place of residence, the documents referred to in par. 1 are not issued, or if the documents do not refer to all instances mentioned in Art. 108 (1), (2) and (4) and Art. 109 (1)(1), (2)(a)–(b) and (3) of the act, they shall be replaced in whole or in part, respectively, by a document containing, respectively, the contractor’s statement, indicating the person or persons authorised to represent the contractor, or a statement of the person to whom the document was supposed to refer, made under oath, or, if in the country in which the contractor has its registered office or place of residence or where the person to whom the document was to refer has his or her place of residence, there are no provisions on a statement under oath, made before a judicial or administrative authority, a notary, or a professional or commercial self-regulatory body, competent for the contractor’s registered office or place of residence, or the place of residence of the person to whom the document was to refer.”
Contractors must remember that the new rule applies only to new proceedings. Ongoing proceedings will continue to be conducted under the previous rules—meaning that the country of the contractor’s registered office will prevail.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP Practice, Wardyński & Partners
