Statements or certificates in public procurement?

Whether a foreign bidder in a Polish tender must submit certificates issued by the public authorities abroad, or merely submit a declaration, depends on the scope of certificates that are issued in the other country.

In order to demonstrate that a bidder meets the conditions for participating in a public procurement procedure and is not subject to exclusion under Art. 24(1) of the Public Procurement Law, the bidder must submit appropriate documents as defined in the Prime Minister’s regulation on this topic dated 30 December 2009 (Journal of Laws Dz.U. 2009 No. 226 item 1817).

If the bidder is a Polish business entity, then, in addition to its registration document (a transcript from the National Court Register or certificate of entry in the local business register), it must file up-to-date certificates from the tax office and the Social Insurance Institution (showing that the bidder does not have tax or social insurance arrears), as well as a certificate from the National Criminal Register (showing that the bidder has not been prohibited from seeking public contracts). Certificates from the National Criminal Register must also be filed to show that the members of the bidder’s executive authority have not been convicted of certain offences, as set forth in Public Procurement Law Art. 24(1)(4–8).

If the bidder is a foreign entity, however, the range of required documents is different. The regulation provides that instead of the documents submitted by a Polish bidder, the foreign bidder should submit documents issued in the country where the business has its registered office, confirming that it is not in liquidation or bankruptcy and that it is not in arrears in payment of taxes, fees, or social insurance and health insurance premiums (or has obtained a lawful exemption or postponement, or arrears are to be paid in instalments, or execution of the assessment has been stayed), and that it has not been prohibited from seeking public contracts. Moreover, in order to demonstrate that the executive authorities have not been convicted of offences as set forth in Public Procurement Law Art. 24(1)(4–8), certificates should be filed issued by the competent judicial or administrative authority for the place where the person in question resides.

Because of the differences in legal systems between different countries in terms of the required types of documents as well as the form in which they are submitted, the Polish regulations also provide for situations in which documents comparable to documents issued in Poland are not issued in the place where the individuals in question reside or the country where the company has its registered office. In such case, the certificate is replaced by a declaration made before a notary or the appropriate judicial, administrative or local governmental authority or professional or commercial self-governing body at the place where the individual resides or the company has its registered office.

The situation becomes more complicated when the country in question does issue documents that on the surface appear equivalent to the Polish documents in question, but in reality the scope of the foreign documents differs from the Polish documents. For example, the criminal records in another country might not disclose information about certain convictions because the sentence fell below a certain level. Then the bidder would face a dilemma. If it filed a foreign certificate whose scope is not the same as the analogous Polish document, the document could be disputed in the Polish procurement procedure. On the other hand, if the bidder filed a declaration whose content covered the same scope as a Polish certificate would, it could be alleged that the document was not issued by the competent authority and therefore is not in the proper form.

The National Appeal Chamber has addressed this problem in several recent rulings. For example, in case nos. KIO 1965/10, KIO 2131/10 and KIO 2493/10, the chamber held that in such situations it is permissible to file a certificate whose scope is not as broad as a Polish certificate would be, as well as a declaration when there is no authority in the given country that issues the appropriate certificate.

This means that a foreign bidder may choose whether it wishes to submit a certificate issued by the competent authority in the home jurisdiction, or appear before a notary and make a declaration with the content corresponding to that required under the Polish regulations.

This line of precedent clearly addresses the situation of foreign bidders in Polish public procurement procedures. In the past, the contracting authority would sometimes dispute certificates issued by foreign authorities. At the same time, foreign bidders who were aware of the differences in content between Polish and foreign certificates did not know how to properly prepare the offer.

Another aspect of this solution to the problem of certificates is that in many circumstances a foreign bidder may avoid the formalities connected with the need to obtain the required certificates. This will be the case anytime the scope of the foreign certificate does not exactly match the scope of information included in certificates issued by Polish authorities or registers.

In this respect, the situation of a foreign bidder is more favourable than that of a Polish bidder. The Polish bidder is forced to obtain certificates issued no later than the date for submission of bids or applications for admission to the tender procedure. If the foreign bidder can show that the information included in a certificate from the competent authority in its home country differs from that included in certificates issued by the Polish authorities, the foreign bidder may cure the formal defects in its bid or application for admission to the procedure by submitting a declaration made before a notary—which need not be made prior to the deadline for filing bids. The foreign bidder may even file the declaration after being summoned to supplement the bid, if the declaration states that the facts in question are confirmed as of the date for filing bids. It is important to bear in mind, however, that the notary before whom the declaration is made in the public procurement procedure be a notary at the place where the company has its registered office or the place of residence of the person whom the declaration concerns.

This issue affects not only foreign bidders as such, but also many Polish bidders when the members of the management board reside abroad. With respect to filing certificates that such board members have a clean criminal record, the rulings discussed above will apply equally whether the company they serve is Polish or foreign.

Anna Prigan, Infrastructure, Transport & Public Procurement (PPP) practice, Wardyński & Partners