Tales from the National Appeal Chamber: A contractor does not have to submit documents issued by the contracting authority
The number of declarations and documents submitted by contractors during the contract award procedure forced the Parliament to introduce mechanisms to cut red tape. One of the key provisions in this aspect is Art. 26(6) of the Public Procurement Law, the purpose and practical application of which was explained by the National Appeal Chamber in its ruling of 13 March 2020 (KIO 439/20).
Exception from the obligation to submit documents
The obligation to submit documents specified in Art. 25(1) of the Public Procurement Law is imposed on contractors in Art. 26(1), which states that before awarding a contract with a value equal to or above the amounts specified in the provisions issued pursuant to Art. 11(8), the contracting authority shall summon the contractor whose bid was rated the highest to submit declarations or documents confirming the circumstances stated in Art. 25(1). The contractor is obliged to submit the required declarations and documents within a time limit of no less than 10 days.
The Parliament has introduced an exception to this obligation in Art. 26(6), as a contractor does not have to submit declarations or documents confirming the circumstances referred to in Art. 25(1)(1) and (3) if the contracting authority:
- Is in possession of the declarations or documents concerning the contractor, or
- May obtain them via free and publicly available databases, in particular public registers within the meaning of the Act on Digitalisation of Operations of Entities Performing Public Tasks of 17 February 2005.
Purpose of exception according to the National Appeal Chamber
This raises the question of whether, in an ongoing procedure, a contractor must submit declarations or documents issued by the same contracting authority on the basis of another procedure. In such a case, may the contractor rely on Art. 26(6) of the Public Procurement Law to defend against allegations by other entities that it has not submitted the required declarations or documents?
In its ruling of 13 March 2020 (KIO 439/20), the National Appeal Chamber (KIO) held in favour of the contractor: “It follows from the above provisions that if the contracting authority has documents confirming the contractor’s fulfilment of the conditions for participation in the procedure, the contractor is not required to submit them. The Parliament has introduced the above solution in order to limit the number of documents that the contracting authority would have to request and the contractor would have to submit, when there is no need to do so, as documents necessary to assess compliance with the condition are already in possession of the contracting authority. Therefore, this solution is intended to make public procurement procedures less bureaucratic and to make it easier for contractors to apply for public contracts.”
Therefore, the chamber emphasised that every time Art. 26(6) is applied, consideration should be given to the possibility of reducing bureaucratic obligations, if it is not detrimental to the interests of either party to the procurement procedure. Art. 26(6) is particularly relevant in the case of otherwise unfounded appeals which focus exclusively on the failure to submit individual declarations or documents. Therefore, the contractor may opt not to submit documents or declarations if the contracting authority has direct access to them, as it has issued them itself, or they are generally available in free databases. As emphasised by KIO: “It would be superfluous … for a contractor to ask the contracting authority to issue references only to subsequently present the same references, issued by itself, to the same contracting authority. This is what the introduction of Art. 26(6) of the Public Procurement Law aims at, so that contractors do not have to perform such purely formal, unnecessary activities.”
In Art. 26(6) of the Public Procurement Law, the Parliament has included a provision aimed at reducing the number of required declarations and documents. The legal analysis of this provision carried out by the National Appeal Chamber shows that “since the selected contractor indicated the service performed for the contracting authority conducting the proceedings, it was not obliged to submit documents confirming the proper performance of this service, as the contracting authority was in possession of such documents and did not question the proper performance of this service.”
Cyprian Herl, Infrastructure, Transport, Public Procurement & PPP Practice, Wardyński & Partners