Defence contracts and secure borders off the books?

The Central Register of Contracts is intended to contain information on contracts concluded by public finance sector entities. Recently, "Rz" reported on a controversial proposal to raise the minimum threshold for publishing contracts in the electronic central register (from PLN 500 to PLN 10,000). However, it turns out that the scope of contracts included in the register also raises concerns. The project, piloted by the Ministry of Finance, recently reached the Standing Committee of the Council of Ministers, where other ministries could voice their concerns.

Krzysztof Izdebski of the Stefan Batory Foundation points out that the draft is quite clear, and the scope of the act seems quite well-balanced. There may be some initial challenges, but appropriate standards will be developed over time.

The Ministry of National Defense and the Ministry of Internal Affairs want secrecy in matters of defense, borders and the activities of the services.

The Minister of National Defense has proposed that the CRU not include contracts concluded by special services and Polish foreign missions, nor those signed by units subordinate to the Ministry of National Defense. He justifies this by citing the "current geopolitical situation," which requires the protection of "not only data regarding armaments and military equipment, operational capabilities, but also the use of services from specific businesses or entities." Information about which companies the military signs contracts with can reveal information about the equipment it purchases. Aggregating information about multiple contracts from numerous entities subordinate to the Ministry of National Defense in one place is particularly dangerous, as it creates new opportunities to track the potential of the Polish military.

The Minister of Internal Affairs is proposing a similar exclusion. It would cover "investors" within the meaning of the Act "on the construction of state border security." This is because, in this case, the agreements are also "particularly sensitive" due to the increasing migration pressure on the border with Belarus and Russia. These agreements could provide information on "methods and tools for carrying out tasks by the Border Guard, response times for damage, solutions used, and entities providing training for them."

The Ministry of Interior and Administration also proposes excluding defense and security purchases from the register, even if, due to the amount involved, they are not subject to the Public Procurement Act. This could also be "sensitive equipment." Finally, the third proposal concerns "contracts concluded in connection with the performance of operational and reconnaissance activities (or the protection of forms and methods of task execution, information, own facilities, and data identifying officers)."

The Ministry of Finance refuses to take into account the comments because... this data is already excluded from the register.

In response to the Ministry of Interior and Administration's comments, the Ministry of Finance, which authored the bill, indicated that contracts related to border security expenditures are already covered by the proposed regulation's exclusions. Such expenditures fall within the scope of "defense and security." The exclusion in this area applies regardless of the monetary limits set forth in public procurement regulations. Finally, expenditures on the services' operational activities are already exempt from the principle of transparency.

The situation is somewhat different regarding the Ministry of National Defense's demands. The Ministry of Finance notes that units subordinate to the Ministry of National Defense already publish information about ongoing public procurement contracts in their Public Information Bulletins. Therefore, only information about contracts that are not subject to publication under public procurement regulations will be excluded from publication in the register, as well as information that may be classified under separate regulations. The Ministry of National Defense also indicates that it is possible to classify only certain information or to specify a very general subject matter of the contract.

"What the Minister of Defense wants to combat is the lack of automatic exclusion of information about contracts in areas under the Ministry of National Defense's jurisdiction. However, this must be carefully considered in each case, as not every contract related to defense or border protection should be classified," explains Krzysztof Izdebski.

He adds that contracts that are not included in the register may also be disclosed under access to public information.

"So, unless it's otherwise confidential, it will still be disclosed. This always requires some consideration from the entity sharing the information. But defense-related matters are usually subject to appropriate clauses," he concludes.