On Tuesday, February 10, 2, the Chamber of Deputies approved an amendment to Act No. 2015/137 Coll., on public contracts (hereinafter referred to as "ZVZ"). In addition to novelties, such as the assessment of bids not only by price or the possibility to declare a winner even with one bidder, the deputies accepted the senate's proposal to increase the limit for the direct assignment of multiple jobs from 2006% to 20%. However, the amendment approved by the Chamber of Deputies also brings a number of novelties in communication with the ÚOHS. From the point of view of companies and representing attorneys, the most problematic can be described as changes in the area of ​​proceedings before the ÚOHS in the matter of the review of the contracting authority's actions, the main aim of which is to limit the occurrence of so-called bullying proposals for the review of the contracting authority's actions and to speed up the proceedings before the ÚOHS.

From a legal point of view, this is only a technical amendment, the actual amendment to the ZVZ will only be prepared in the course of 2015, with planned effectiveness from 1 January 1. However, even this partial amendment brings some significant changes, which are not discussed much publicly and which may to limit the entitled complainants in their efforts to achieve the correction of the objectionable state. The amendment brings the greatest complications especially to potential complainants in the process of reviewing the actions of the contracting authority based on the (unsuccessful) bidder's proposal:

• a) According to the provisions of § 114 paragraph 10 of the amended version of the ZVZ, the proposer must submit a perfect proposal in terms of special requirements, any later changes or additions will not be taken into account by the ÚOHS. During the proceedings, which last for several months, it will no longer be possible to submit further evidence. In other words, even if key evidence appears during the proceedings that the selection process did not take place according to the applicable rules, this evidence will no longer be possible to present. Furthermore, the ÚOHS will take into account the new facts stated in the proposal compared to the facts contained in the objections submitted by the contracting authority only if they are such facts that the petitioner could not already claim against the contracting authority, which the petitioner will have to prove at the same time. In principle, the obligation of the ÚOHS to review the procedure of the contracting authority, even beyond the scope of the proposal or beyond the scope of properly applied objections. At the same time, it will be necessary to submit the proposal for the review of the contracting authority's actions only electronically, including the presentation of evidence, which means additional administrative burden on the part of the proponent.
• b) According to the provisions of § 115 paragraph 1 of the amended version of the ZVZ, the maximum limit of the deposit is increased from CZK 2 million to CZK 10 million. The calculation of the deposit is set as 1% of the bidder's tender price for the entire period of performance of the public contract, in the case of open-ended contracts for the period of the first four years of performance of the contract (which clarifies the issue of determining the total tender price for open-ended contracts, which has so far been decided by the ÚOHS very diverse). In the event that the offer price cannot be ascertained, a deposit of CZK 100 remains. Here, the point is to make the tenderer questioning the tender conditions submit objections according to § 000, paragraph 110 of the ZVZ even before submitting the tender and not after opening the envelopes, as is often the case for obvious reasons.
• c) According to the provisions of § 115 paragraph 5 of the amended version of the ZVZ, the time for depositing the deposit is shortened - the deposit must be credited to the office's account no later than the last day of the deadline for submitting an initiative to the ÚOHS, i.e. in the standard case within 10 calendar days from the day the complainant received the decision of the contracting authority, to which the objections were not satisfied. Compared to today, it will not be possible to deposit the deposit additionally, e.g. in case of complications on the part of the financial institution. This is because it is a special requirement of the proposal, which will not be supplemented. Here, too, it is clearly an instrument to prevent bullying proposals. The additional payment of the deposit made it possible to submit a proposal and withdraw it without the applicant having to deposit the relevant amount into the account of the ÚOHS, while at the same time temporarily invoking the ban to conclude a contract for the performance of the contract. For some applicants, however, such a shortening of the deposit deadline can be problematic, especially in view of the increase in the maximum deposit limit and the obligation to attach proof of deposit to the proposal (even this cannot be additionally documented, even if the deposit is actually deposited), which effectively shortens the already short the deadline for submitting a proposal for a review of the contracting authority's actions.
• d) According to the provisions of § 115, paragraph 3 of the amended version of the ZVZ, 20% of the deposit amount will be forfeited in the event that the petitioner withdraws the proposal before the decision on the merits is issued. It is in this way that the legislator tries to prevent specific proposals, the purpose of which was primarily to block further steps by the contracting authority and which were withdrawn before the decision of the ÚOHS.

The aforementioned changes in the approach of the complainants to the proceedings before the ÚOHS are, as stated, to prevent the submission of so-called harassment proposals. On the other hand, it is necessary to point out the fact that these changes may lead to denying or making it difficult for authorized complainants to have access to remedying the objectionable situation.

The amendment also brings interesting changes to the procurement procedure on the part of the contracting authorities. For example, if the contracting authority decides to award a public contract according to the basic evaluation criterion of the economic advantage of the offer, it may, according to the provisions of § 78, paragraph 4 of the amended version of the ZVZ also use the organization, qualifications and experience of persons as a partial evaluation criterion, which should participate in the implementation of the contract, if they have a significant impact on the performance of the given contract. This is to a large extent a very subjectively evaluable criterion that will be difficult to quantify and difficult to define in the tender conditions in order to preserve their transparency. Reality to what extent such an institute will allow significant manipulation of orders and their "tailoring" to the size of those applicants who are to win the order, will examine the application of the amended law in practice.

However, the ZVZ amendment also brings other changes. The abolition of the provisions of § 84 paragraph 1 letter of e) ZVZ, i.e. cancellation of the contracting authority's obligation to cancel the tender if it received only one offer. This change will significantly speed up the tendering process in procedures where only one candidate applied. In the same way, from the point of view of the contracting authority and the supplier, the change in the conditions for the direct assignment of so-called multi-tasking according to § 23 paragraph 7 letter a) ZVZ and increasing the limit for this direct entry of such additional work from 20% to 30%, . Previously, it was possible to directly assign additional work without further tendering only in the case of objectively unforeseeable changes, typically force majeure (e.g. flood). Newly, it will be sufficient if the contracting authority proves that, when preparing the award of a public contract, it proceeded in ascertaining the scope and composition of the work necessary for the implementation of the contract with the care of a proper manager, which is a clear relaxation of the conditions of application of the negotiation procedure without publication in such a case.

Source: epravo.cz