Following the fact that most of the upcoming changes brought about by the amendment to Act No. 343/2015 Coll. on Public Procurement (hereinafter referred to as the “Public Procurement Act”), based on Act No. 395/2021 Coll. amending and supplementing the Public Procurement Act, will take effect on 31 March 2022, we will try to bring you selected topics from public procurement in individual articles in the coming weeks.
Since one of the main objectives of the legislator, in cooperation with the Public Procurement Office, was to professionalize the public procurement process, we have decided to focus on this topic in this article, specifically in relation to the professional guarantor.
Following the amendment of the centralization of purchasing and joint public procurement, which are also considered forms of professionalization of public procurement, a completely new institution of professional guarantor for public procurement will be added to the law, following the example of Croatia and Hungary, with a subcategory of so-called registered persons. For the sake of clarity, the legislator has therefore decided to add a whole new Chapter 6 to the Act, entitled “Professionalisation in public procurement”.
A professional guarantor is a natural or legal person who has met the legal requirements consisting of proving professional experience and passing exams, after which the Public Procurement Office will add them to the list of professional guarantors. As stated by the legislator in the explanatory memorandum, "The professional examination should not only focus on a basic overview of the relevant legislation, but should primarily emphasize the verification of the applicant's ‘real abilities’ focused on analytical skills, working with case law, etc., In certain cases, namely where sufficient professional experience has been demonstrated – successful completion of at least ten procurement or concession procedures over a period of ten years in which the applicant performed the specified tasks – it is not necessary to take the examination. As follows from the above, as of March 31, 2022, the provisions of the entire sixth chapter of the Act will become effective, but only with the entry into force of the Act on the professional examination of public procurement specialists.
As follows from the above, as of March 31, 2022, the provisions of the entire sixth chapter of the Act will be effective, but only as of March 31, 2024, will public contracting authorities be required to perform the activities specified in Section Section 184b(2)(a) to (q) in public procurement through a professional guarantor within the meaning of Section 184b(1) of the Public Procurement Act. An exception is the procedure for awarding low-value contracts under Section 139 of the Public Procurement Act (low-value contracts in the field of defense and security), design contests, the acquisition of goods or services from a central purchasing body, the acquisition of goods, construction works or services based on contracts awarded by a central purchasing body, and the procedure for awarding contracts through a dynamic purchasing system within the financial limit for low-value contracts. Pursuant to Section 184b(2), the tasks of the Expert Guarantor shall include the following activities:
- assessing the eligibility for exemptions from the scope of this Act pursuant to Section 1(2) to (14) where the contract value exceeds EUR 50,000 excluding value added tax, with the exception of exemptions pursuant to Section 1(2)(e) and (w), Section 1(12)(c) and Section 1(15)
- assesses the eligibility of conditions for contract modification pursuant to Section 18,
- assesses compliance with the rules for determining the estimated value of a contract or concession,
- assesses the selection of the contract or concession award procedure,
- assesses the conditions for participation and the criteria for evaluating tenders pursuant to this Act,
- cooperates in the preparation of a description of the subject matter of the contract and the conditions for performance of the contract in order to ensure compliance with Section 42,
- ensures the preparation of documents necessary for the preparation of a tender, a draft or for proving compliance with the conditions for participation,
- performs acts leading to the announcement of a public procurement procedure,
- after the announcement of the public procurement, ensures communication with economic operators in accordance with this Act,
- ensures actions for the purpose of opening tenders, unless a committee has been established pursuant to Section 51,
- ensures the evaluation of the conditions for participation, the rules for limiting the number of candidates who will be invited to submit tenders and the evaluation of tenders, unless a committee has been established pursuant to Section 51,
- supervises compliance with the deadlines during the public procurement procedure laid down in this Act,
- guides the commission pursuant to Section 51 in order to ensure that its procedural steps comply with the provisions of this Act,
- after evaluating the tenders, ensures the steps leading to the conclusion of the contract,
- assesses the conditions for cancellation of public procurement pursuant to Section 57(2) and ensures the steps related to the cancellation of public procurement,
- ensures the fulfillment of information obligations after the completion of public procurement as set out in this Act,
- participates in the implementation of tasks related to the supervision of public procurement in accordance with this Act.
The expert guarantor must perform activities with professional care, while public procurers, procurers and persons pursuant to Section 8 of the Public Procurement Act may not ensure one specific activity within the meaning of the above list through several expert guarantors. It follows from the above that the procedure for awarding a single contract may be carried out by several professional guarantors, but the individual activities must be clearly and unambiguously divided between these professional guarantors. This also follows from the fact that the contract report pursuant to Section 24 will contain the identification of the professional guarantor or professional guarantors and the identification of the specific activity performed by each professional guarantor.
The Public Procurement Act will allow contracting authorities, contracting entities and persons pursuant to Section 8 to require professional guarantors to have liability insurance for damage caused in the performance of their activities as professional guarantors for the entire duration of their activities, with the liability insurance limit not being less than EUR 100,000. This can be considered a positive step towards the professionalization of services in public procurement, as public contracting authorities in particular have in many cases required service providers to take out liability insurance, which has not yet been available on the insurance market in the field of public procurement. The requirement for liability insurance emphasizes the need for professionalization and the assumption of responsibility for the services provided.
As already indicated, the Public Procurement Office will maintain a list of professional guarantors and registered persons, and will be responsible for examinations, testing and training, supervision and, at the same time, will be authorized to impose sanctions on professional guarantors and registered persons. The Public Procurement Office will have at its disposal a range of sanctions that it will be able to impose for individual violations of the Public Procurement Act, and will be authorized, in particular, to warn the professional guarantor, order a review of the professional guarantor, impose a fine, and remove the professional guarantor from the list. If the violation of the law is a direct consequence of an act, activity, or omission performed or that should have been performed by the professional guarantor in public procurement, the Office of the Professional Guarantor will notify the professional guarantor in writing or order a review of the professional guarantor. In the case of more serious violations, a fine of up to EUR 5,000 shall be imposed in addition to the ordered review. The most serious consequence is removal from the list of Professional Guarantors, in which case a fine of up to EUR 10,000 may also be imposed on the professional guarantor. Removal from the list as the most serious form of sanction against a professional guarantor may be imposed by the Office if the professional guarantor loses the legal prerequisites for performing the role of professional guarantor – integrity within the meaning of Section 184b(9) 9, or if the Office repeatedly imposes a fine for an administrative offense that is a direct consequence of an act, activity, or omission that the professional guarantor performed or should have performed in public procurement.
We have long encountered, whether in cooperation with public contractors or bidders for public contracts, with the problem that the public procurement process is not in accordance with the Public Procurement Act, and that, particularly in the case of public contracts co-financed from European Union funds, there is a reduction in the non-repayable financial resources provided, as a result of which we are essentially all on the losing side – the whole of society. The cause is often one common denominator: incompetence. Today, the provision of services in the field of public procurement is a free trade and can be carried out by almost anyone, while public procurers, contracting authorities and entities within the meaning of Section 8 often give preference to the price of the services provided at the expense of quality. In our opinion, the professionalization of public procurement is therefore the right direction to take. The institution of a professional guarantor and the overall professionalization of public procurement should bring greater transparency and gradual improvement of the entire process, as a result of which formal compliance with the letter of the law should become only a prerequisite for procurement with an emphasis on quality and not the sole objective. The Public Procurement Office will gain greater control over the entire area of public procurement, and the administrative burden on the office is also expected to be reduced, with some of the responsibility being transferred to professional guarantors. A natural consequence of professionalization should be increased efficiency and speed of the public procurement process. However, only time will tell whether the institution of professional guarantors is the right means of professionalizing public procurement, and it will largely be up to the Public Procurement Office to set the bar for professional guarantors.
As we mentioned in the introduction, we will be bringing you further articles on topics related to the amendment of the Public Procurement Act in the near future. We would be happy to hear from you if you have any questions about public procurement. In cooperation with our partner BALTEUS spol. s r.o., we can already offer you services in the field of public procurement at the highest level.
