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:

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