When a contractor applies for a public tender in Poland, they are required to show that there are no grounds for excluding them from the procedure. One cause of exclusion is legally binding conviction of a contractor (natural person), or persons vital to the contractor’s business activity, for certain offences. Persons key to the business are usually management board or supervisory board members in the case of capital companies, partners in the case of partnerships, and commercial proxies. According to the specific circumstances, this problem might also affect a firm that makes resources available to a contractor.

Particular points a contractor needs to consider:

  1. the list of offences under Polish law for which a contractor with a legally binding conviction must be excluded from a public tender is broader than that provided for in the Tender Directive[1];
  2. the normal method of demonstrating no legally binding prior convictions is obtaining a certificate from the relevant criminal register;
  3. when using criminal registers other than in Poland, a contractor must always determine whether the information in that register covers the offences listed in this regard in Polish public procurement law;
  4. if the offences listed in a foreign register are not those regarding which information is required under Polish public procurement law, the contractor needs to make sure that it has an additional declaration specifying that they have no prior convictions for a particular offence.

The system under the Tender Directive

Art. 57(1) of the Tender Directive lists offences for which a contractor should be excluded from a procurement procedure, and this applies equally to:

  • offences committed by members of administrative, management, or supervisory bodies of the contractor, and
  • offences committed by persons with powers of representation, or decision-making or control within the contractor.

This requirement was written into Polish law, which states that in the case of legal persons, the following are subject to checks on past convictions[2]:

  1. members of a management body;
  2. members of a supervisory body;
  3. partners in a registered partnership;
  4. partners in a professional partnership;
  5. general partners in a limited partnership;
  6. general partners in a limited joint-stock partnership;
  7. commercial proxies.

The Tender Directive also lists offences for which conviction in a final judgment of the persons described above means a contractor must be excluded from the procedure. These offences include fraud in the meaning of art. 1 of the Convention on the protection of the European Communities’ financial interests[3]. This article in that Convention covers fraud affecting the European Communities’ financial interests, which is acts including intentional presentation of false statements or documents aimed at the misappropriation, wrongful retention, or diminution of funds from the general budget of the European Communities.

In the course of implementation with respect to the above, the Public Procurement Law of 11 September 2019 (PPL) makes reference to the Criminal Code[4], and goes further than the Tender Directive with regard to the list of offences. To give an example, when determining whether there are grounds for exclusion from a procedure, the provisions that a Polish contracting authority must consider include art. 300 and 301 of the Criminal Code, which state the penalties for frustrating or limiting satisfaction of a creditor regardless of whether that conduct affects the European Communities’ financial interests or, equally, the financial interests of a private entity.

There are more differences with respect to the offences listed in art. 57(1) of the Tender Directive and art. 108(1)(1) and (2) of the PPL, but it is important to grasp the principle that the list of actions in Polish law for which a contractor is excluded from a procedure due to a final conviction is much broader.

This is affirmed in a judgment given by the Warsaw Regional Court – the Public Procurement Court, of 15 September 2023, case no. XXIII Zs 60/23. In the case in question, a contractor stated that they were relying on resources of a third party based in Denmark. To demonstrate that there were no grounds for excluding the third party from the procedure, the contractor submitted a ServiceAttest from the Danish criminal register confirming no prior convictions for the offences listed in art. 135(1) of the Danish Public Procurement Act (Udbudsloven). However a “simple version” of art. 57(1) of the Tender Directive had been implemented into Danish law, and thus the respective list of offences had been copied, without being expanded, and the Contracting Authority had found this ServiceAttest to be sufficient.

The contracting authority’s decision was contested by a competitor, who appealed to the National Appeals Chamber (NAC), the body that adjudicates disputes in the first instance concerning breach of the PPL. The NAC found the appeal to be justified because it was not demonstrated that the third party did not have prior convictions for all of the offences listed in the PPL; this was demonstrated only with respect to the offences listed specifically in the Tender Directive.

While the Warsaw Regional Court did in fact modify the NAC’s ruling, with respect to the findings described above it concurred with the conclusion reached in the first instance, stating that when art. 57(1) of the Tender Directive was implemented into Polish law, it was possible for the range of offences being grounds from exclusion of a contractor from the procedure to be extended.

The court’s standpoint is important because various conclusions could be drawn from the views expressed in this matter by the President of the Public Procurement Office in the past, and these included the view that the Tender Directive was implemented to the minimum degree, i.e. “one-to-one”.

The alternative option: a declaration

In Poland, a certificate of no prior convictions is obtained from the National Criminal Register (KRK). This register operates efficiently, and enables a citizen of Poland to obtain a hard copy or electronic certificate “on the spot” for a small fee.

A citizen of an EU member state other than Poland can also obtain this certificate through the KRK. In this case, the KRK has to send a query to the country of which the person concerned is a citizen, and enclose, in the information from the KRK, information from the register in the country of which the subject of the query is a citizen. Foreign registers have twenty business days to provide the information, and this significantly prolongs the time for processing queries submitted to the KRK. When this system is used, it is advisable to obtain the certificate in advance, but it may not be more than six months old when it is submitted. A foreign entity may also submit a certificate obtained from the criminal register in their home country. As mentioned, in this case the legal grounds stated on the certificate, and how they relate to the requirements under art. 108(1)(1) and (2) of the PPL, need to be reviewed carefully. 

If there is no procedure for issuing the certificate in the country in which the contractor has its registered office or place of residence (or place of residence of the subject), or that certificate does not cover all of the cases listed in the PPL (as in the Danish ServiceAttest case), a declaration may be used to replace the certificate in whole or in part. The declaration can be made under oath (if the law of the country in question so provides) or before a judicial or administrative body, notary, or autonomous professional or economic organization competent for the place of residence of the person concerned[5].

As an alternative to using the criminal register, submitting a declaration raises a series of other practical concerns, such as competence of the body before which the declaration is to be made. In fact, some of these concerns were addressed in the court judgment described above, as that court stated that a declaration by a foreign entity can be made before a notary. This is because in the circumstances of the case in question, a Polish attorney-in-fact submitted the declaration on behalf of the Danish firm. The court found that the declaration could be made with a certified signature, and a notarial deed was not necessary (the conclusion reached by the NAC in the first instance).

Thus the above shows that cross-border bidding in a public tender may involve numerous formal difficulties. Although it makes an important contribution to the discussion on demonstrating grounds for exclusion from a tender procedure, the court’s standpoint does not prevent a contracting authority or the NAC from taking a different view, and this is because the judgment does not establish a legal principle.  To mitigate the risk of error causing a contractor to be eliminated from a tender, it would be advisable to compare the foreign documents with the rules under the PPL carefully, and exercise caution if in doubt. 

[1] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC.

[2] Art. 108(1)(1) and (2) of the Public Procurement Law of 11 September 2019.

[3] Drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests.

[4] Criminal Code of 6 June, 1997.

[5] Art. 4(3) of the Regulation issued by the Minister of Development, Labor and Technology of 23 December 2020 on subjective means of proof and other documents or declarations that a contracting authority can request from a contractor.