Assignment of claims in public procurement

Table of Contents:

  1. Is assignment of claims permissible?
  2. Can the permissibility of assignment of claims be excluded?

The Public Procurement Law of September 11, 2019 contains specific regulations applicable to public entities. One of the fundamental principles of public procurement law is expressed in Article 17(2) of the Act, according to which contracts are awarded to the contractor selected in accordance with the provisions of the law. While the freedom of contracts under public procurement law encounters significant limitations, it does not imply that legal relationships between the contracting authority and the contractor are exempt from the provisions of the Civil Code.

Is assignment of claims permissible?

Assignment of claims is expressed in Article 509 of the Civil Code and means that a creditor may transfer a claim to a third party (assignment) without the debtor’s consent, unless prohibited by law, contractual reservation, or the nature of the obligation. Assignment of claims results in a change of creditor.

In principle, any claim can be subject to assignment. As indicated in the opinion of the Public Procurement Office dated January 22, 2024, “the nature of the obligation arising from a public procurement contract does not exclude the application of assignment of claims for remuneration due to the contractor for delivered supplies, services, or construction works, as such assignment does not change the essence of the performance or result in a new contract. As a result of the assignment of claims from the aforementioned title, the obligational relationship does not change – only the person participating on the creditor’s side changes.”

Can the permissibility of assignment of claims be excluded?

In the procurement documents, particularly in the contract template, the contracting authority may introduce certain restrictions regarding the permissibility of assignment. Primarily, they can make assignment subject to their consent. In situations where in the procurement documents the contracting authority:

  • does not exclude the assignment of claims for remuneration due to the contractor for delivered supplies, services, or construction works based on the public procurement contract, or
  • does not limit the possibility of assigning such claims to subcontractors, or
  • does not introduce any provisions regarding the assignment of such claims,

it should be understood that assignment of such claims to subcontractors is permissible.

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