Public Procurement - Changes Coming Soon
The amendment to the Public Procurement Act (hereinafter referred to as the "PPA") was published in the Collection of Laws under No. 166/2023 Coll. on 16 June 2023 and will come into force on the 30th day after its publication, i.e. on 16 July 2023. Similarly to previous amendments to the public procurement legislation, procurement procedures initiated before the amendment comes into force will be completed in accordance with the existing wording of the PPA.
In the previous three parts of our miniseries, we have followed the legislative development of the amendment to the PPA. In today's latest episode, we take a look at the version of the amendment, which was approved by the Chamber of Deputies at the end of last month.
The Chamber of Deputies rejected the changes proposed by the Senate, which we wrote about in the previous part of the miniseries - it was mainly an increase in the limits of the estimated value of small-scale public contracts, which have not been increased since 2014. The Chamber of Deputies, therefore, stuck to the previously approved wording of the amendment.
Below is a list of changes that we consider to be the most important:
- Changes to the simplified below-the-threshold procedure
The qualification requirements for public contracting authorities have been tightened and they will have to require proof of basic competence, at least by means of an affidavit. Find out more in the first part of our mini-series.
- Modification of protection of the suppliers against contracting authority misconduct
A change that will be particularly welcomed by contracting authorities is the possibility to set a deadline for objections to tender conditions no later than 72 hours before the end of the deadline for submission of tenders. You can read more about it in the second part of our miniseries.
- Extension of the tender period and other changes
Changes have not escaped the regulation on the extension of the tender period - it is now extended by law, if the contracting authority has set it in the tender documentation, by the period during which the contracting authority may not conclude a contract with the supplier pursuant to the PPA, decision of the Office for the Protection of Competition or pursuant to an imposed preliminary injunction, but also by the period agreed by the contracting authority with the participants in the tender procedure. If the contracting authority breaches the obligation to notify of the selection of the contractor within the tender period, newly, the public procurement will be terminated after 3 months from the end of the tender period. In addition, the costs incurred by the suppliers will be reimbursed only on the basis of a request from the participants.
- The acquisition of shares or a security is not a public contract
The amendment also clarifies that the acquisition of a security, investment instrument, business enterprise, its separate organisational unit or a share (ownership interest) in a business corporation is not considered to be an acquisition of an item within the meaning of the PPA, i.e. is not a public supply contract.
- Possibility of oral communication between the supplier and the contracting authority
Last but not least, the possibility of oral communication in the public procurement procedure between the contracting authority and the supplier has been specified. Oral communication is possible, for example, during a site visit or in other cases provided for in the PPA. However, it must be ensured that such communication is documented - either by a note or an audio recording.
In addition to the above-mentioned changes, the legal framework has also been clarified in the area of proof of security, the electronicisation of the procedure has been strengthened or the information of the participants has been increased by allowing the participants in the procurement procedure to request the contracting authority to provide them with information on the tender prices after the opening of tenders.
If you would like further information, please do not hesitate to contact the authors of the article or other members of the EY Law firm or EY team with whom you are working.