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 from March 31, 2022, economic operators established outside the territory of the Slovak Republic must prove that they meet the conditions for participation relating to personal status pursuant to Section 32(1)(a) and (b) of the Public Procurement Act.2022, economic operators established outside the territory of the Slovak Republic must demonstrate that they meet the conditions for participation relating to personal status pursuant to Section 32(1)(b), (c) and (f) of the Public Procurement Act.
Sections 32 to 34 of the ZVO lay down the conditions for participation, which constitute the basic requirements for the selection of candidates entitling them to participate in public procurement. The conditions for participation are divided into three categories: personal status laid down in Section 32 of the ZVO, financial and economic standing laid down in Section 33 of the ZVO, and technical and professional competence laid down in Sections 34 to 36 of the ZVO.
In the aforementioned amendment to the Public Procurement Act, attention should be drawn to Section 32 of the Public Procurement Act. Pursuant to Section 32(1)(b), (c) and (f) of the Public Procurement Act, only those who meet the following conditions of participation relating to personal status may participate in public procurement:
b) they have no recorded social security arrears and the health insurance company has no recorded 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) they have no recorded tax arrears with the tax office and customs office under special regulations in the Slovak Republic and in the country of their registered office, place of business or usual 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) lays down specific conditions for participation relating to personal status, which must be met by all interested parties in above-threshold contracts awarded by contracting authorities, and compliance with these conditions is mandatory. The contracting authority may not in any way change, narrow, extend or otherwise adapt these conditions to its requirements.
Pursuant to Section 38(2) of the Public Procurement Act, the contracting authority may specify the conditions for participation in public procurement and the documents proving that these conditions are met. 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 Section 32, (b) financial and economic standing pursuant to Section 33, (c) technical or professional ability pursuant to Sections 34 to 36. In the case of contracts awarded by contracting authorities, the conditions for participation must be met 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, the conditions for participation relating to personal status are optional and not mandatory. Even in this case, the contracting authority may not modify the conditions in any way and must base its decision 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 prove all the conditions for participation relating to personal status set out in paragraph 1.
In accordance with the amended provisions, when participating in public procurement, an entity no longer proves that it meets the conditions 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 list of economic operators (hereinafter referred to as “ZHS”) maintained by the Public Procurement Office (hereinafter referred to as “ÚVO”), has demonstrated that it meets the conditions in the country of its registered office by means of confirmation from institutions operating in that country, from 31 March 2022, it must also prove that it meets the above conditions in the Slovak Republic.
Due to the fact that entities proved their eligibility for registration in the ZHS only in relation to the country of their registered office or place of business or usual residence, it is necessary to update the registration in the ZHS by adding confirmations from the following institutions established in the Slovak Republic in order to participate in public procurement in the Slovak Republic without any problems:
- 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 above-mentioned confirmations with a solemn declaration of fact pursuant to Section 32(1)(f) of the Public Procurement Act.
For this purpose, foreign economic operators must send to all the above-mentioned institutions in the Slovak Republic requests for the issuance of a confirmation pursuant to Section 32(1)(b), (c) and (f) of the Public Procurement Act, in which they must request the issuance of a confirmation that the given institution (e.g. General Health Insurance Company, Social Insurance Company, etc.) has no outstanding payments or overdue receivables from the economic operator in question under specific regulations. After receiving all confirmations from Slovak institutions, the documents must be delivered to the ÚVO for the purpose of updating the data in the list of economic operators. In this regard, we would like to draw your attention to the fact that the above-mentioned institutions are not obliged 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 obsolescence of your entry in the ZHS as well as the update process itself.
Failure to meet the conditions for participation relating to personal status in public procurement may result in the exclusion of an economic operator from public procurement or a ban on participation in public procurement. In this regard, it is necessary to draw attention to Section 182(3)(a) of the Public Procurement Act, pursuant to which the Public Procurement Office shall impose on a tenderer, interested party or economic operator a fine of between EUR 1,000 and EUR 10,000 and a ban on participation in public procurement for a period of three years, if, for the purposes of proving that the conditions for participation in public procurement have been met, for the purposes of selecting candidates in public procurement, for the purposes of entry in the list of economic operators or for the purposes of providing a security, it submits information or a document that is false or altered in such a way that it does not correspond to the facts and has an impact on the assessment of the fulfillment of the conditions for participation, the selection of candidates, the registration in the list of economic operators, or on ensuring the binding nature of tenders by a security.
