Act No 134/2016 on public procurement, as amended, regulates, in Sections 187 et seq., the issue of public contracts in the field of defence and security, and pursuant to Section 187(1), a public contract in the field of defence and security is, inter alia, any public contract the subject of which is the supply of sensitive material, its parts, spare parts or parts, as well as sensitive works or sensitive services. Section 187(2) then provides that sensitive material, sensitive works and sensitive services means material, works or services that affect, require or contain classified information. It can therefore be stated that, from the point of view of the Public Procurement Act, public contracts with a classified element are public contracts in the field of defence or security.

Pursuant to Section 194 of the Public Procurement Act, in the case of a public contract in the field of defence or security involving access to classified information or requiring separate access to a secure area or negotiation area, the contracting authority may require, inter alia, a document proving the supplier’s ability to ensure the protection of classified information according to the relevant type of ensuring the protection of classified information (i.e., for example, an entrepreneur’s certificate issued pursuant to Act No 412/2005 on the protection of classified information and security eligibility, as amended). That provision also expressly provides that the fulfilment of that condition cannot be proved by any other person. Therefore, proving this qualification requirement through a subcontractor constitutes a breach of the Public Procurement Act.

In addition to the above, we would point out that, notwithstanding the above-mentioned legislation, the NSA has consistently taken the view that it is not permissible for any entity to secure access to classified information through a third party. If the conditions for access to classified information by the contractor are not met, activities involving access to classified information by the contractor may not be carried out in the context of such a contract.