The amendment to the Public Procurement Act (the “Act”) came into effect on 6 May 2015 with the aim to correct the weaknesses identified in the previous and current iteration of the Act and further to reduce the administrative burden, financial costs and to make the procurement procedure less time consuming. Moreover, the adopted modifications shall accelerate and limit abuse of the review procedure.
The most significant changes introduced by the amendment of Act are as follows:
1. Softening requirements for additional works and services
Additional works and services will now be allowed if the contracting authority was not able to foresee the work with due care; therefore objectively unforeseeable circumstances for additional work and services are no longer required. Moreover, the maximal extent of additional works and services were increased from 20% to 30% of the price of a public contract.
2. No obligatory cancelation of the tender procedure where there is one bid
This controversial obligation has not had its intended results. In addition, it has complicated a number of public contracts especially with regards to specific performance provisions. The contracting authority is now able to decide whether to award a public contract or to cancel the procurement procedure.
3. New evaluation criteria: organisation, qualification and experience
It will now be possible to reflect the organisation, qualification and experience of people involved in the performance of the public contract. This new criterion is primarily intended to be applicable to public contracts for so-called intellectual services, e.g. services of architects, designers and consultants, and not for contracts that deal with routine supplies and construction works.
4. Introduction of concentration principle for the complaint procedure
All facts and circumstances relating to any complaint shall be presented by the parties within 15 days of the opening of the complaint procedure. It is no longer possible to submit any additional evidence after this time limit has expired. This deadline does not apply to new evidence which came to light after the expiry of the 15 days, for which the parties will have the chance to submit.
5. Increase of upper deposit amount for complaint procedure.
The upper deposit amount for the complaint procedure was increased from CZK 2 mil (approximately EUR 73 thousand) to CZK 10 mil (approximately EUR 365 thousand). Where a complaint is withdrawn, only 80% of the deposit will be returned, not the full amount.
6. Reduced time limitation for complaint procedure.
The competition authority is now only allowed to review public procurement procedure within three years (not five years as stipulated previously) from when there is knowledge of the breach of rules, however it can review up to five years (not ten years) after the breach of rules.
7. Exclusive use of electronic forms of communication.
Communication with the competition authority shall now be in electronic form only.
In conclusion, although it seems that the changes are of a technical nature, these new rules will simplify the public procurement procedure. Please note that a new public procurement act, which will implement the new EU public procurement rules contained in EU Directives 2014/23, 2014/24 and 2014/25, is currently being heavily discussed and should be introduced at the beginning of the next year.