Since 16 April 2022, a new Act of 13 April 2022 on Specific Solutions to Counteracting Support for Aggression against Ukraine and to Protect National Security (the “Act on Counteracting Support for Aggression Against Ukraine“) has been in force in Poland. The Act requires the exclusion of contractors entered on a list maintained by the minister responsible for internal affairs. The Polish legislator chose not to amend the existing Public Procurement Law (the “PPL Act“), but rather introduced a different parallel law.
Grounds for exclusion
Under the Act on Counteracting Support for Aggression against Ukraine, the following are excluded from public procurement proceedings:
a) a contractor or a participant in the competition included in the lists set out in Regulation 765/2006 and Regulation 269/2014 or entered in the list kept by the minister responsible for internal affairs based on a decision ruling on the application of an exclusion measure,
b) a contractor or a participant in the competition whose beneficial owner within the meaning of the Act of 1 March 2018 on the Prevention of Money Laundering and Terrorist Financing (Journal of Laws of 2022, item 593 and 655) is a person included in the lists set out in Regulation 765/2006 and Regulation 269/2014, or entered in the list or being such a beneficial owner as from 24 February 2022, provided that he or she has been entered in the list kept by the minister responsible for internal affairs based on a decision ruling on the application of a an exclusion measure,
c) a contractor or a participant in the competition whose parent entity within the meaning of Article 3(1)(37) of the Accounting Act of 29 September 1994 (Journal of Laws of 2021, item 217, 2105 and 2106) is an entity included in the lists set out in Regulation 765/2006 and Regulation 269/2014 or entered in the list or being such a parent entity as from 24 February 2022, provided that it has been entered in the list kept by the minister responsible for internal affairs based on a decision ruling on the application of an exclusion measure.
The law applies to all public procurement
The Act on Counteracting Support for Aggression against Ukraine introduces new, self-contained and mandatory grounds for exclusion, which must be verified in proceedings initiated and not completed by the date of entry into force of the Act with respect to all public procurement contracts or competitions, regardless of their value, including those awarded exempt from the PPL Act. This is different from the regulation in force in Regulation 833/2014, as amended by Regulation 2022/576, which only applies to public contracts with a value equal to or above the EU threshold. The EU Regulation is a separate basis for excluding a contractor in relation to the Law on Counteracting Support for Aggression in Ukraine.
Documents
Documents used to assess whether there are grounds for exclusion regarding sanctions imposed on Russia include “all available subjective evidence”. These were not precisely indicated, so the most commonly used document is the contractor’s own statement, which includes a statement that the contractor is not subject to exclusion under Article 7(1) of the Act on Counteracting Support for Aggression against Ukraine.
The penalty for participation in the tender
In addition, the Polish legislator has introduced a key measure to prevent entities associated with Russia from applying for participation in tenders. A fine of up to PLN 20,000,000 imposed by the President of the Public Procurement Office on a person or entity subject to exclusion under this Act applying for the award of a contract has been added to the Act on Counteracting the Support of Aggression against Ukraine.
For further information, please contact:
Tomasz Zalewski, Partner, Bird & Bird
tomasz.zalewski@twobirds.com
