The Public Procurement Office confirmed the possibility of the contracting authority’s possibility to transfer receivables due to a subcontractor

The contracting authority awards the public contract to a specific contractor selected through a tendering procedure.Consequently, the contractor’s ability to assign the rights and obligations that arise from the contract with the contracting authority to another entity is significantly limited. However, the transfer of a monetary claim under the contract does not lead to a change in the parties to the concluded contract – the contractor selected in accordance with the law remains obliged to perform the public contract. To date, however, there has been no clear position from the Public Procurement Office confirming this possibility, with the result that contracting authorities may have been reluctant to make payments to subcontractors.

On 22 January 2024, the Public Procurement Office posted an opinion on its website[1] , in which it clearly indicated that:

• • the public procurement law does not regulate the institution of transfer of receivables, so civil law provisions should be used in this respect;
  • according to the Civil Code, a creditor may, without the debtor’s consent, transfer a claim to a third party (assignment), unless this would be contrary to the law, a contractual stipulation or the nature of the obligation;
  • the nature of the obligation, which arises from the public procurement contract, does not exclude the application of a transfer of remuneration, since within public procurement the transfer does not lead to a change in the substance of the performance or to the award of a new contract;
  • it should be recognised that an assignment of claims to a subcontractor is permissible where the contracting authority, in the contract documents:
  • does not preclude the transfer of remuneration to which the contractor is entitled in respect of supplies, services or works provided under a public procurement contract, or
  • does not limit the possibility of assigning such a claim to a subcontractor, either
  • does not make any provision on the assignment of such a claim;
  • the contractor is obliged to notify the contracting authority of the transfer, otherwise the contracting authority will be able to relieve itself of the debt by performing the service to the contractor rather than the subcontractor.

Where the public procurement contract does not exclude this possibility, a contractor who, for example, lacks the funds to pay the subcontractor’s remuneration, may assign to the subcontractor the monetary claim to which it is entitled against the contracting authority for work performed by the subcontractor. Importantly, too, if the public contract does not stipulate the prior consent of the contracting authority for the contractor to make such an assignment, notification to the contracting authority will be sufficient. In such a case, the contracting authority will be obliged to pay the remuneration directly to the subcontractor, and the subcontractor thus acquires a claim for payment directly against the contracting authority. This makes it possible to keep the remuneration within the procurement contract fluid.

Author: Marta Pasztaleniec

Footnote

[1] https://www.gov.pl/web/uzp/dopuszczalnosc-przelewu-wierzytelnosci-przyslugujacej-wykonawcy-zamowienia-publicznego-na-rzecz-podwykonawcy