Pursuant to the latest amendment to Act No. 343/2015 Coll. on Public Procurement (hereinafter referred to as the “Public Procurement Act” or “ZVO”), effective as of March 31, 2022, economic operators established outside the territory of the Slovak Republic must demonstrate compliance with the conditions for participation relating to personal status pursuant to Section 32(1)(b), (c), and (f) of the Public Procurement Act.
Sections 32 through 34 of the Public Procurement Act set forth the eligibility requirements that constitute the basic criteria for selecting bidders, thereby entitling them to participate in public procurement. The conditions for participation are divided into three categories: personal status as set forth in Section 32 of the Public Procurement Act, financial and economic standing set forth in Section 33 of the Public Procurement Act, and technical and professional competence set forth in Sections 34 through 36 of the Public Procurement Act.
Regarding the aforementioned amendment to the Public Procurement Act, attention must be drawn to Section 32 of the Act. Pursuant to Section 32(1)(b), (c), and (f) of the Public Procurement Act, only those who meet the following participation conditions regarding personal status may participate in public procurement:
b) has no recorded arrears in social insurance contributions, and the health insurance company has no record of overdue receivables against them under special regulations in the Slovak Republic and in the country of their registered office, place of business, or habitual residence,
c) has no outstanding tax arrears with the tax office or customs office under the specific regulations of the Slovak Republic and the country of registered office, place of business, or habitual residence,
f) is not subject to a ban on participation in public procurement confirmed by a final decision in the Slovak Republic and in the country of its registered office, place of business, or habitual residence.
Section 32(1) establishes specific eligibility requirements regarding personal status, compliance with which is required of all bidders for above-threshold contracts awarded by contracting authorities, and compliance with these requirements is mandatory. The contracting authority may not in any way modify, narrow, expand, or otherwise adapt these conditions to its own requirements.
Pursuant to Section 38(2) of the Public Procurement Act, the contracting authority may specify the conditions for participation in a public procurement procedure and the documents by which they may be demonstrated. If it does so, it shall specify them in the notice used as a call for competition, in the tender documents, or in the information document, if published pursuant to Section 43(2). The conditions for participation may relate to (a) personal status pursuant to § 32, (b) financial and economic standing pursuant to § 33, (c) technical or professional competence pursuant to §§ 34 to 36. In the case of contracts awarded by contracting authorities, compliance with the conditions for participation is required if the contracting authority has decided, in accordance with Section 38(2) of the Public Procurement Act, to specify conditions for participation. In this case, compliance with the conditions for participation relating to personal status is optional and not mandatory. Even in this case, the contracting authority may not modify the conditions in any way, and it is necessary to rely exclusively on the wording of Section 32(1). However, the contracting authority may narrow the scope of the conditions, for example, by not requiring the economic operator to demonstrate compliance with all the personal status conditions for participation set forth in paragraph 1.
In accordance with the amended provisions, when participating in a public procurement procedure, an entity must now demonstrate compliance with the conditions not only in the country of its registered office, place of business, or habitual residence, but also in the Slovak Republic. If a foreign entity with its registered office in another country, upon initial registration in the Register of Economic Operators (hereinafter “ZHS”) maintained by the Public Procurement Office (hereinafter “ÚVO”), demonstrated compliance with the conditions in the country of its registered office through confirmations from institutions operating in that country, as of March 31, 2022, it must also demonstrate compliance with the above-mentioned conditions in the Slovak Republic.
Since, upon registration in the ZHS, entities demonstrated compliance with the conditions for participation only in relation to the country of their registered office, place of business, or habitual residence, it is necessary to update the registration in the ZHS by adding confirmations from the following institutions established in the Slovak Republic to ensure smooth participation in public procurement in the Slovak Republic:
- Všeobecná zdravotná poisťovňa, a. s.,
- DÔVERA Health Insurance Company, a.s.
- Union Health Insurance Company, a.s.,
- Social Insurance Agency
- Tax Office
- Customs Office.
At the same time, it is required to supplement the aforementioned confirmations with a sworn statement regarding the facts pursuant to Section 32(1)(f) of the Public Procurement Act.
For this purpose, foreign economic operators must send requests to all the aforementioned institutions in the Slovak Republic for the issuance of a certificate pursuant to Section 32(1)(b), c) and f) of the Public Procurement Act, in which they must request a confirmation that the relevant institution (e.g., General Health Insurance Company, Social Insurance Agency, etc.) has no record of arrears or overdue receivables against the said economic operator pursuant to specific regulations. Upon receipt of all confirmations from Slovak institutions, the documents must be submitted to the Public Procurement Office (ÚVO) for the purpose of updating the data in the list of economic operators. In this regard, we would like to inform you that the aforementioned institutions are not required to issue confirmations to economic operators immediately, and therefore a situation may arise where you will have to wait longer for some of the confirmations, which may prolong the period during which your entry in the ZHS is out of date, as well as the update process itself.
Failure to meet the conditions for participation regarding personal status in public procurement may result in the exclusion of the economic operator from the public procurement procedure or a ban on participation in public procurement. In this regard, attention should be drawn to Section 182(3)(a) of the Public Procurement Act, pursuant to which the Public Procurement Office shall impose on a bidder, an interested party, or an economic operator a fine ranging from 1,000 euros to 10,000 euros and a ban on participation in public procurement for a period of three years if, for the purpose of demonstrating compliance with the conditions for participation in public procurement, for the purpose of selecting candidates in public procurement, for the purpose of registration in the list of economic operators, or for the purpose of providing a security deposit, submits information or a document that is false or altered in such a way that it does not correspond to the facts and affects the assessment of compliance with the conditions for participation, the selection of candidates, the registration in the list of economic operators, or the securing of bid bonds.
