31.05.2021 10:44
In March 2015, Act no. 40/2015 Coll., the amending act to Act no. 137/2006 Coll., On Public Procurement, as amended (hereinafter the “technical amendment“) came into effect. The aim is to simplify the procurement and to eliminate some of the shortcomings of the Public Procurement Act (the “PPA“). In this article we briefly introduce the most important changes that the technical amendment to the PPA has introduced. The technical amendment will affect all procurement procedures launched after 6. 3. 2015, previously commenced tender procedure will be completed under the PPA before the technical amendment.
The expansion of the evaluation criteria for the award of public contracts is probably the most significant change. Newly, the contracting authority may set partial evaluation criteria within the basic criterion of „most economically advantageous tender” which include (i) the impact of the public contract on employment of people with difficult access to the labor market, or (ii) the organization, qualification and experience of the people involved in the implementation of public contract if they have significant impact on its performance. With this change, domestic legislation has moved closer to legislation on evaluation criteria in a number of Western European countries, where it is possible to evaluate how the minimum qualification requirements of applicants are attained or exceeded. In our opinion, contracting authorities have been finally given an effective tool for the selection of offers by other than purely price parameters. In the past, the sub-criteria were based on the subjective “quality of performance offered”, and that posed considerable practical difficulties, with the result that many contracting authorities resorted, out of caution, to a single criterion, the lowest bid price. The technical amendment also provides for the abolition of the obligation of the contracting authority to cancel the tender if it receives only one bid or of only one bid remains in the competition.
In addition, the list of evaluators and hence their mandatory participation in selected public contracts have been permanently cancelled, as well as the opponents´ expert opinions, the production of which was a precondition for drafting a reasoning for major public contracts.
The technical amendment has also introduced substantial changes to the negotiated procedure without publication. Under this type of procurement procedure so far, the contracting authority had the possibility to award a contract for additional works or additional services only if so required by objectively unforeseeable circumstances. As of the amendment, it will suffice if these circumstances couldn´t have been foreseen by the contracting authority acting with due care. At the same time, the limit for the price increase due to additional works or additional services has been set at 30% (previously the limit was 20%).
Minor changes concern a relatively broad range of provisions regulating the review process on practices of the Contracting Authority conducted before the Anti-Monopoly Office. These include, for instance the obligation to attach written evidence to the electronic motion to institute such proceedings, i.e. no such attachment or changes to the motion will be permitted later. Also, there is a new deadline of 15 calendar days from the date of receipt of the notice of commencement of proceedings for submission of new evidence and facts with respect to ongoing proceedings. Lastly, the maximum amount of security deposit has been reduced from twenty to ten million Czech crowns, and conversely, in case of a motion for a ban to perform under a contract, the petitioner is required to pay a deposit in the amount of CZK 200 000 instead of the original CZK 100 000.
In conclusion, let us add that intensive works are under way on entirely new public procurement law to implement the Community Directives (EP and Council Directives no. 2014/23/EU and no. 2014/24/EU), which is expected to come into effect no later than by April 1st, 2016. The technical amendment is thus probably the last significant change affecting the currently valid PPA.