On March 2, 2018, the Executive Director of the Public Procurement Agency, exercising his authority under article 229, paragraph 1, point 2 from the Public Procurement Act to give methodical assistance to the contracting authorities, related to the application of the act, issued Methodical guideline No. MU–5, related to the “Suspension of the requirement of the presentation of a criminal record from a participant selected as a public procurement contractor under the Public Procurement Act (PPA)”. The reasons for the publication of the methodical guideline are amendments and supplements to Ordinance No. 8, dated 26th February 2008, on the functions and organization of the activity of the criminal records bureau, issued by the Minister of Justice and promulgated in the State Gazette, issue 18 from 27th February 2018. According to the new provision of article 35b from the above-mentioned Ordinance, an Electronic Conviction Status Certificate (ECSC) has been introduced. It suspends the obligation of natural persons to provide certificate of criminal record before the central and territorial authorities of the Executive (with effect from 3rd March 2018).
In essence, the amendments in Ordinance No.8, dated 26th February 2018, provide for the issue of Electronic Conviction Status Certificate (ECSC) be performed by the Ministry of Justice after submission of an online application of the central and territorial authorities of the Executive authority, as well as of the Supreme Judicial Council and the bodies of the Judiciary through authorized persons. Applicant can only be an official from the administration of the respective executive body, as well as from the Supreme Judicial Council and from the bodies of the Judiciary, authorized to gain access to the data, concerning the certificate of criminal record, in respect of which a statutory act provides for the official establishment of the judicial status. In relation to that, the amendments made to the Law on limitation of administrative regulation and administrative control over economic activity (new paragraph 4 of article 5) and to the Administrative Procedure Code (new paragraph 5 of article 36) have to be considered. These provisions are introducing the legal obligation of the administrative bodies to establish ex officio the data, concerning the judicial status of the individual, when the requirements for the establishment of this circumstance are introduced in a legal act.
The Electronic Conviction Status Certificate (ECSC) is submitted in accordance with a standard by filling in the online application form, which can be accessed on the official website of the Ministry of Justice, with the applicant being identified by qualified electronic signature. The personal identification number of the natural person shall be entered in the application form for which the issue of the ECSC is requested and then the system visualizes additional information for the given name, surname and family name. The official electronic certificate of criminal record is generated online by standard form, in accordance with application No. 7 under the Ordinance through the informational system of the Ministry of Justice and is being kept for a period of 20 years. In case there is a valid ECSC issued for the natural person, the applicant can decide whether or not to use the already issued ECSC or to request the issue of a new one. The ECSC is issued for persons, who have not been subject to a Criminal justice bulletin, including under article 78a from the Criminal Code. In all other cases and for the natural persons who are born abroad, the Certificate of Criminal Record is issued under the generally established order. The applicant receives automatically generated message when the person has been subject of Criminal Justice Bulletin, including under article 78a from the Criminal code.
The deadline for publication of ECSC is no later than three business days from the date of submission and is valid for a period of six months. No state fee for the administrative body is due for the issue of the ECSC.
The purpose of the legislative amendment is the reduction of the administrative burden – both in terms of time and of expenditures of natural persons, obligated to certify their judicial status.
In the Methodical Guideline No.MU–5 issued by the Executive director of the Public Procurement Agency, it is indicated that the quoted legislative changes also affect the legislation in the field of public procurement. Article 54, paragraph 1, point 1 from the PPA and article 157, paragraph 1, point 1 from the PPA provides as a reason for suspension of the candidate or participant from the public procurement – the natural person which is its representative or is a member of its managing or supervisory authority or has the power to exercise control over the decision-making of these bodies (by argument from article 57, paragraph 2 from the PPA, respectively – by argument from article 157, paragraph 4 from the PPA) to be convicted with a final verdict for crimes expressly listed in the law, unless rehabilitated. At the moment of submission of the offer, the absence of those circumstances related to a final conviction, are only declared by the candidate or the participant. The requirement to present a certificate of criminal record for the purpose of proving this circumstance is expressly provided by the law only in respect of the selected contractor candidate or participant (by argument from article 58, paragraph 1, point 1 from the PPA, respectively article 157, paragraph 6, point 1 from the PPA). At the same time, in compliance with article 58, paragraph 6 and article 157, paragraph 7 from the PPA, the Contracting authority is not entitled to require the submission of the documents under article 58, paragraph 1 and article 157, paragraph 6 from the PPA (including the certificate of criminal record), when the circumstances in them are accessible through a public free register or the information or the access to it is provided from the competent body to the Contracting authority ex officio.
In view of the adopted legislative principle for collection of information ex officio regarding the judicial status of natural persons (article 5, paragraph 4 of the Law on limitation of administrative regulation and administrative control over economic activity) and in relation to the envisaged possibility to obtain an ECSC for a wider range of Contracting authorities of public procurement procedures (article 35b of Ordinance № 8, dated 26th February 2008), the Executive director of the Public Procurement Agency indicated in the Methodical Guideline № MU-5, dated 2nd March 2018, that with effect from 3rd March 2018, the Contracting authorities, that are administrative bodies have to suspend the application of the requirement in burden of the participants selected for public procurement contractors to provide a certificate of criminal record.
It should be noted that not all contracting authorities of public procurement procedures are bodies of the Executive. Such bodies are the indicated in article 19 from the Administration Act, namely: the Council of Ministers, the Prime Minister, deputy Prime Ministers, Ministers (central bodies of the Executive authority); the District governors, mayors of districts and municipalities and mayor’s deputies (the territorial bodies of the Executive), presidents of state agencies, the state commissions, the executive directors of the executive agencies, as well as the Heads of Institutions, established by Law or by Ministerial Decree, which have functions, related to exercising the Executive authority. Applicant for the publication of the ECSC can only be an official from the administration of a body of the Executive authority, thus the official certification of the judicial status of the individuals for the purposes of awarding a public procurement contract is not applicable when the contracting authority is not an Executive body.
Member of “Velinov and partners” Consulting House