The so-called big amendment to the Act on Public Procurement prepared by the Office for Public Procurement (the "Office"), that came into effect as of 1 January 2019, aims to abrogate a number of application problems, as well as to simplify the public procurement processes. The main changes are discussed below.
New financial thresholds
Thresholds have changed as of 1 January 2019, e.g., thresholds for contracts below certain limits are unified, irrespective of whether these contracts relate to commonly available goods and services. The amendment introduces the exception for so-called contracts with low value, i.e. not exceeding EUR 5,000 during the calendar year or during the contract's validity. The main aim is to make low value purchases more flexible.
A summary of new thresholds is available in the general methodical guidelines of the Office No. 1/2019 at https://www.uvo.gov.sk/legislativametodika-dohlad/metodicke-usmernenia/vseobecne-metodicke-usmernenia-zakon-c-3432015-z-z--51e.html?id=1926.
Proving and assessing fulfilment of selection criteria
Under the so-called Act on Bureaucracy, effective as of 1 January 2019, documents which are available from the information systems of public administration shall not be required to submit in order to prove personal standing. It will be further specified in the procurement documents which types of documents are not required.
When assessing the fulfilment of selection criteria, the contracting authority (as well as other procurers) shall request tenderers to replace the technicians, persons who are intended to fulfil the contract, or persons used to fulfil criteria relating to technical and professional ability, in case they do not meet selection criteria, or if there are other reasons for their disqualification. Tenderers will have at least five business days in order to find replacements, otherwise they will be disqualified.
Preparation and submission of offers, bid bond, references
Under the Amendment, offers will not be submitted in two separate and closed parts: "Criteria" and "Others". Practice will show us whether this change has resulted in simplifying and shortening the public procurement process and revision procedure.
If a tenderer or a candidate has not prepared the offer itself, but instead used services of a third party, he shall also provide information within the offer about the party whose services have been used during preparation of the offer.
The amendment is also a response to those situations, when the public procurement process was extended and the tenderers, mainly SMEs, were burdened inappropriately, since they were not able to dispose with the bid bond during such public procurement extension. Following the amendment, the period for commitment to offers cannot be longer than 12 months, and it cannot be prolonged, thus after its expiry the bid bond has to be returned to the tenderer. Thus, the tenderer may decide whether he shall continue in the procedure or not. Such a situation shall not constitute grounds for cancellation of the applied procedure of intended contract.
A new form of guarantee has been introduced –an insurance guarantee, according to the Act on Insurance; and the maximum guarantee amount has been adjusted – 5% of the supposed value of the contract or EUR 500,000, whichever amount is lower. If the contract is divided, the value of all guarantees cannot exceed EUR 500,000.
Contracting authorities and other procurer shall also take into consideration references stated in the evidence of references, preparation of a reference by way of an evaluative mark has been cancelled, and the contracting authority/procurer shall provide oral assessments to every contractor. The procedure for remedy for providing a missing reference has been adjusted respectively.
The requirements for request for remedy are simplified by the new regulation, the duty to submit the request for remedy electronically has been introduced, except for when the system does not enable electronic delivery or support the electronic functionality of public procurement. Objections shall now also be submitted electronically (under similar conditions).
In addition, the period for delivery of the request for remedy has been adjusted, to be delivered at least four business days before the deadline for submitting offers (two business days for contracts below the threshold). This applies provided that the documents, which are subject to remedy request, were provided at least 15 days before the deadline for submitting offers; if they were provided later, the period of 10 days from their provision will apply.
The amendment unifies calculating of the deposit for objections, the deposit amount is set at 0.1 % of the supposed value of the contract, the minimum amount is EUR 2,000, and the maximum amount has been decreased from EUR 150,000 to EUR 50,000.The legislator believes that this change could help increase participation and interest in public procurement, as well as lead to an increase in the number of offers.
The obligation to attach the decision on the request for remedy to objections has been removed. The obligatory merging all proceeding on objections has also been cancelled. However, the Office may combine proceedings on multiple objections into one common proceeding.
Executing appendices, amending contracts
The amendment also abrogates the criticised excessive severity of the original legal regulation of amendments to contracts during their validity. If the reason for contract amendment is a request for additional goods, services or work, or unpredictable circumstances (the reasons are defined by the Act), the contract amendment changes cannot exceed 50 % of the original contract value, and this limit applies separately for every such change. This relieves and unifies our legislation in line with the EU directives.
Less bureaucratic burden
Under the Anti-bureaucratic Act and interconnection of electronic systems of public administration, candidates registered in the list of economic subjects do not have to submit documents that are available from information systems of public administration. For instance, entrepreneurs were obliged to announce the change in their executive bodies to the Office, as well as provide respective related documents. Following the amendment, these documents are not required to be submitted, and the Office will request and verify these documents on its own. However, there is still an obligation to notify the change, via a form available on the Office's website within 30 days from when the change occurred. Otherwise, the Office will impose a fine. At the same time, a "pardon" for companies that did not fulfil the duty to notify the changes of data in the list has been introduced – if these changes are notified by 28 February 2019, the Office will stop proceedings on imposing a fine, or the proceeding shall not even start.
The amendment has also implemented further changes, e.g., contracts below the threshold will be procured without using the electronic market, and the provisions for dynamic purchasing systems have been amended, as well as many other provisions of the Act. In case of further questions, please do not hesitate to contact us.
Bird & Bird is an international law firm providing complex services to its clients including advisory in the scope of public procurement. Our team of experienced lawyers have extensive knowledge of key topics. In case you are interested in our consultancy, please do not hesitate to contact us.
This article is only informative in nature and includes only a basic overview of the most common situations. Thus, it does not have to correspond to specific concrete commercial cases and does not represent legal advice.