Public-sector bodies and organisations which are subject to the obligation to carry out public procurement procedures are required to obtain a statement of the bidder’s structure of ownership prior to the conclusion of a contract to procure goods or services with the said bidder. The information on ownership thus obtained enables the public sector to ascertain whether any persons with a conflict of interest are involved in the conclusion, performance, or supervision of the contract, or whether the contract is being concluded with a person with applicable restrictions on business activities. The declaration must include all natural persons with an ownership stake in the bidder. This includes both persons who are direct shareholders of the bidder as well as person who are shareholders of other companies in which the bidder holds an ownership stake (indirect owners).
If the information in the declaration submitted by the bidder are incorrect, the concluded contract is null and as such generates no legal effect. Failing to obtain a structure-of-ownership declaration is an offence as stipulated by Paragraph 3 of Article 77 and Article 78 of the IPCA, as is failing to provide a declaration of ownership upon the request of the Commission by the entity subject to the obligation.
Anti-Corruption Clause stipulates that any contract is considered null and thus generates no legal effect if bribery of a public-sector representative has occurred during the course of its conclusion, performance of supervision.
The above is further defined in Paragraph 1 of Article 14 of the IPCA: Any contract in which a person promises, offers or gives any undue advantage to the representative or agent of a public sector body or organisation on behalf or for the account of another contracting party for the purpose of:
- obtaining business;
- concluding business under more favourable terms and conditions;
- omitting due supervision over the implementation of contractual obligations; or
- any other act or omission which causes a public sector body or organisation damage or by which the representative or the agent of the public sector body or organisation, the other contracting party or its representative, agent or intermediary are put, in a position to obtain an undue advantage, shall be deemed null and void.
Public sector bodies and organisations are required to forewarn the persons with whom they enter into contract about the nullity of the contract in the event of bribery by including the Anti-Corruption Clause cited above into any contract for the procurement of goods, services or contractors when its value exceeds EUR 10,000 (excluding VAT).
In exceptional cases when the inclusion of the Anti-Corruption Clause is not possible or suitable, the public-sector body or organisation may request that the Commission grant the permission for an individual contract to be entered into without the Anti-Corruption Clause being included. The Commission considers the request using an administrative procedure and publishes its decision on its website.
In the event of a suspicion bribery having taken place in a public-sector body or organisation in the course of the conclusion of a contract, the said body or organisation must initiate a procedure for establishing the nullity of the contract. It must review and secure the existing documentation and, based on its own conclusions about the existence of corruption, cease the performance of the contract and/or demand the restitution of any acts already performed. Failing to initiate a procedure for establishing the nullity of the contract after a suspicion of corruption has been detected or a notification of such suspicion by the Commission or other bodies has been received by the organisation constitutes an offence (Paragraph 3 of Article 77 and Article 78 of the IPCA), as does failing to submit any contracts requested by the Commission with the intention of verifying the compliance with the provisions regarding the Anti-Corruption Clause.