New Amendment to the Public Procurement Act – what's ahead in the Czech Republic from July 2023

Procurement procedures begun in the Czech Republic after 16 July 2023 will be governed by new legislation. This is the tenth amendment to the current Public Procurement Act; however, for the first time, it is a comprehensive amendment.

The new law’s main purpose is to eliminate shortcomings in the transposition of EU procurement directives, which European Commission has pointed out. It also makes changes that should reduce the administrative burden on both contracting authorities and suppliers, such as providing access for the Competition Protection Office (CPO) to the tender documentation via certified e-tools. It eases the unreasonable strictness of certain rules, such as providing proof of security, and removes legislative and technical shortcomings in the text of the act (e.g. concerning the start of the blocking period). Although none of the amendments are major conceptual changes to the procurement process and no new rights and obligations are introduced, it is still essential for both contracting authorities and bidders to be aware of the new procurement rules. If you are interested in the details of what changes the amendment brings, read on.

In-depth

Submission and handling of objections

The contracting authority will now be able to stipulate in the tender documentation that objections can only be made no later than 72 hours before the deadline for submitting tenders. This should allow sufficient time for the contracting authority to amend or supplement the tender documentation in response to any objections.

The amendment also clarifies some controversial issues concerning the regulation of the “blocking periods”. For example, the amendment explicitly states that only objections filed in time trigger the blocking period.

Making the tender documentation available to the CPO

The contracting authority will be able to comply with the obligation to send the documentation on the procurement procedure to the CPO simply by providing it with access to these documents and related information in a certified electronic tool during the administrative procedure. If the contracting authority uses this option, it will also be obliged to provide access to these documents to the same extent to a court if an action is brought against the CPO’s decision.

Restriction of bullying submissions

A relatively substantial change is included in a new rule according to which the CPO will no longer deal with an ex officio complaint lodged by a complainant who has submitted a proposal in the same case without having paid a deposit. This rule is intended to reflect an effort to at least partly limit the idea of bullying submissions while at the same time not curtailing contractors’ legitimate rights.

Finally, the amendment explicitly provides that the price quoted in a preliminary tender (e.g. negotiated procedure with publication, innovation partnership procedure) is also to be considered as the tender price for the purposes of calculating the deposit.

Security

The amendment removes ambiguities on the proof of security that have been encountered in practice. Until now, the contracting authority had to exclude a tenderer if it did not include a document proving the security had been filed, i.e. for a formal error in which case the contracting authority had no choice. The amendment reduces the contracting authority’s obligation to exclude a participant for failing to prove the deposit of a security to a mere possibility.

Focus on transparency

Participants in procurement procedures will now be able to request that the contracting authority provides them with information on the bid prices after electronic tenders have been opened. The contracting authority may also provide this and other information from the tenders without a request from the tenderer.

For more information, please contact your local CMS experts, Lukáš Janíček and Lenka Krutáková.