ANTI-CORRUPTION CLAUSE AND STRUCTURE-OF-OWNERSHIP DECLARATION
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 is failing to provide a declaration of ownership on the demand of the Commission by the entity subject to the obligation.
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 stated rule is known as the Anti-Corruption Clause and is defined in Paragraph 1 of Article 14 of the IPCA thus:
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). The primary objective of inclusion of the Clause into contracts is to raise awareness since in the event of bribery having occurred, the contract is null even if the Clause had not been included.
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. On the applicant motion and if deemed appropriate by the Commission, the publication of the permission may be deferred until the contract has been concluded.
In the event that a public sector body or organisation is advised of a suspicion of bribery having taken place in the course of the conclusion of a certain contract, the said body or organisation must initiate a procedure for establishing the nullity of the contract. This chiefly involves reviewing and securing the existing documentation and, based on its own conclusions about the existence of corruption, cease the performance of the contract or demand the restitution of the already performed acts.
Failing to include the Anti-Corruption Clause in a contract constitutes an offence. In the same manner, if the organisation does not initiate a procedure for establishing the nullity of the contract after having detected or been advised of a suspicion of bribery having taken place, or having been notified of such suspicion by the Commission or other bodies, as well as in the event that the said organisation fails to submit contracts requested by the Commission with the intention of verifying the compliance with the provisions regarding the Anti-Corruption Clause.