Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.
Pursuant to Art. 7 of the Act on Special Solutions for Countering Support for Aggression Against Ukraine and Protecting National Security of 13 April 2022, the following must be excluded from proceedings for award of a public contract or a competition, whether under the Public Procurement Law or exempt from the act, including on the basis of value:
- Contractors or participants in a competition listed under the EU’s Regulation 765/2006 or Regulation 269/2014, or pursuant to a decision on exclusion from public procurement
- Contractors or participants in a competition whose beneficial owner within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act of 1 March 2018 is a person listed in Regulation 765/2006 or Regulation 269/2014, or listed itself or as a beneficial owner from 24 February 2022, pursuant to a decision on exclusion from public procurement
- Contractors or participants in a competition whose parent company within the meaning of Art. 3(1)(37) of the Accounting Act of 29 September 1994 is an entity listed in Regulation 765/2006 or Regulation 269/2014, or listed itself or as a parent company from 24 February 2022, pursuant to a decision on exclusion from public procurement.
Depending on the procedure used for award of a public contract and the stage at which the public procurement procedure is being conducted, the contracting authority must reject a request to participate in a public procurement procedure, or a bid from such contractor or competition participant, must not invite such persons to submit an initial bid, a negotiable bid, an additional bid, a bid or a final bid, must not invite such persons to participate in negotiations or dialogue, must not conduct negotiations or dialogue with such persons, must reject an application to participate in a competition, must not invite such persons to submit a competition entry, and must not carry out assessment of a competition entry from such persons.
A contractor subject to exclusion under Art. 7 of the special act of 13 April 2022 which nevertheless applies for award of a public contract or admission to a competition, or participates in a public procurement procedure or competition, is subject to a fine, to be imposed by a decision of the president of the Public Procurement Office, in an amount of up to PLN 20 million. Applying for a public contract or admission to participate in a competition is understood to mean submitting a request to participate in a public contract award procedure or competition, submitting a bid, entering negotiations, or submitting a competition entry, as the case may be.
Exclusion from proceedings under Art. 7 of the special act also applies to procedures for award of public contracts and competitions with a value below the threshold for application of the Public Procurement Law or conducted under an exemption from the Public Procurement Law.
The new exclusion applies not only to newly initiated proceedings, but also to proceedings initiated and not completed by the date of entry into force of the special act, except that the exclusion period will begin no earlier than 1 May 2022. By the end of April 2022, contracting authorities must adjust the procurement documentation or competition terms and conditions to comply with the new provisions.
Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners