Act No. 343/2015 Coll. on Public Procurement and on Amendments and Supplements to Certain Acts (hereinafter referred to as the “Public Procurement Act”) regulates so-called review procedures in Section 163 et seq. As we mentioned in our previous article entitled Professionalization of public procurement in light of the amendment to the Public Procurement Act, an amendment to the Public Procurement Act will come into effect on March 31, 2022, bringing significant changes to review procedures in public procurement, which we will discuss in more detail in today's article.2022, an amendment to the Public Procurement Act will come into effect, bringing significant changes to review procedures in public procurement, which we will examine in more detail in today's article and discuss the most important ones below.
Review procedures can be described as tools within the public procurement process through which affected parties can seek protection of their rights and legally protected interests and obtain a change in decisions made by public contracting authorities or contracting entities. Review procedures also protect the general interest in order and compliance with legal regulations in the public procurement process. From a formal point of view, the current legislation classifies requests for review and supervision of public procurement as review procedures, which can be briefly understood as, in particular, ex-ante assessment of documentation for above-threshold contracts and concessions, proceedings for the review of acts of the audited entity before and after the conclusion of the contract, and proceedings for the determination of invalidity. ex-ante assessment of documentation for above-threshold contracts and concessions, proceedings for the review of acts of the audited entity before and after the conclusion of the contract, and proceedings for the determination of the invalidity of a contract, concession contract or framework agreement.
Request for redress
A request for redress is an institution for which the entity awarding the contract in question is responsible, and this institution can be classified as ex ante, as it is a means of possible redress still in the process preceding the conclusion of the contract. This review procedure allows actively legitimized persons to seek redress directly from the person who caused actual or alleged harm to the rights of the person concerned in the public procurement process before the contract is concluded.
The new legislation will bring the following changes to the process of submitting and handling requests for redress:
- In the case of applications submitted in electronic form, identification and authentication in accordance with Section 20(5) and (6) of the Public Procurement Act will be considered as the signature of the authorized person – in practice, the use of a qualified electronic signature will suffice, as this allows the electronic identification of a natural or legal person to be proven.
- The procedure for submitting the same application is clarified, whereby the contracting authority, the contracting entity and the person referred to in Section 8 may not deal with the application and are not required to notify the applicant of this fact, as a result of which it will not be possible, for example, to submit a repeat application. According to the explanatory memorandum, "The proposed amendment explicitly specifies that if an identical applicant repeatedly submits a request for correction in the same matter, the contracting authority may not extend the deadline for submitting objections. According to the explanatory memorandum, quote: "The proposed amendment explicitly stipulates that if an identical applicant repeatedly submits a request for correction in the same matter, the contracting authority and the contracting entity shall not deal with it. However, if a request for remedy is submitted by another applicant in the same matter that has already been the subject of a request for remedy by another applicant, the contracting authority and the contracting entity shall be obliged to deal with this request for remedy."
Furthermore, a completely new provision, Section 166, is inserted into the Act, according to which the Office is authorized to conduct an investigation to determine whether there are grounds for initiating proceedings on its own initiative, unless otherwise provided by specific regulations. To this end, public authorities, natural persons or legal entities shall be obliged, under threat of sanctions by the Office, to provide the necessary cooperation, in particular to notify the Office of facts or information, to submit matters, documents or evidence relevant to the review pursuant to the previous sentence. These changes will ensure that the Office has more extensive powers in the field of public procurement.
The following provision has also been added to Section 167, which is a prerequisite for closer cooperation between the Public Procurement Office and the Antimonopoly Office of the Slovak Republic, and at the same time, the Office will be entitled, pursuant to paragraph 8, the Office will also be entitled to carry out reviews or supervision on the premises of the contracting authority, the contracting entity or the person referred to in § 8, and this entity will be obliged to allow the Office's employees access to these premises and to provide the requested facts, information and documents. This procedure should contribute to increasing the effectiveness of the Office's activities in the supervision of public procurement.
The entire second paragraph of Section 169 will be deleted, with the result that the audited entity will not be required to request the Office to review the actions of the audited entity prior to the conclusion of the contract in the case of above-threshold contracts and concessions partially financed from EU funds, which, according to the explanatory memorandum, the legislator expects to result in a more efficient and faster public procurement procedure and, therefore, a more efficient procedure for drawing EU funds. This amendment should significantly reduce the workload of the Office, which will still be able to review the actions of the audited entity on its own initiative, but it is questionable and debatable what impact this change will have on the transparency of the entire process.
Objections
Objections in public procurement are an institution which, unlike requests for correction, have been directly transposed into national legislation from binding EU legal acts implementing the right of data subjects to have decisions of public contracting authorities reviewed by the competent authority, i.e. the Public Procurement Office. Similar to requests for redress, objections are an ex ante instrument that allows the rights of affected persons to be exercised at a time when any infringements of the law can still be effectively remedied. The institution of objections is a procedure governed by the principle of disposability, i.e. it is a procedure that will never be initiated ex officio, but always on the basis of a qualified request from the person concerned. The new legislation will bring about the most significant changes within the institution of objections, in particular the following changes:
The definitions of persons entitled to lodge objections have been broadened, and an interested party whose rights or legally protected interests have been or could have been affected by the procedure of the controlled person will now be considered an interested party for these purposes. The definition of a person whose rights or legally protected interests have been or could have been affected by the procedure of the controlled person under point (d) has been extended to include a condition whereby a member of a group of suppliers submitting objections on behalf of that group of suppliers after the submission of a tender, proposal or request to participate by the group of suppliers shall not be considered such a person if the objections submitted by him are not submitted on behalf of all members of the group of suppliers.
The scope of cases in which it will not be possible to lodge objections is significantly extended and, under the new rules, it will not be possible to lodge objections in the following cases:
- when awarding contracts for the performance of construction works, if the estimated value of the contract is equal to or less than EUR 800,000
- the award of sub-threshold contracts by public contracting authorities for the supply of goods or services, regardless of the value of the contract,
According to the explanatory memorandum, the reasons for these restrictions are mainly statistical indicators for the recent period, according to which these are “segments” that are not dominant in terms of the total number of objections lodged. According to the explanatory memorandum, 10 of the total 269 objections were directed against sub-threshold procedures for goods and services and 38 objections concerned construction works with an estimated contract value of up to EUR 1,000,000. However, in our legal opinion, preventing the possibility of lodging objections solely on the grounds of their “low” use in the previous period is not entirely correct, and we believe that in order to maintain the greatest possible degree of transparency, the possibility of lodging objections in such cases should have been retained.
- A new paragraph 8 is added to Section 170, according to which it will be prohibited to lodge manifestly unfounded objections, whereby an objection will be considered manifestly unfounded if it clearly serves to abuse a right or to exercise or prevent the exercise of a right in an arbitrary and futile manner, or leads to unreasonable delays in the proceedings for the review of the acts of the inspected entity. Furthermore, anyone who violates the prohibition on raising manifestly unfounded objections shall be liable for any damage caused to another party. T
