In practice, it is common to see cases where contracting authorities condition the conclusion of a contract on the performance of a public contract in the tender conditions by submitting various documents. Most often, these are requirements for submitting an insurance contract, or bank guarantee documents for the purpose of ensuring the fulfillment of the supplier's obligations under the given contract. The next part of this article will only deal with the requirement to submit an insurance contract, which the author considers to be the most common in practice.
Fulfillment of the aforementioned condition is assessed by the contracting authorities as standard until immediately before the signature itself "contested" contracts for the performance of a public contract. This is a procedure that was already developed during the effective date of Act No. 137/2006 Coll., on public contracts, and is used by the contracting authority even during the effective date of the current legislation on public procurement. The previous legal regulation of Act No. 137/2006 Coll., on public contracts, did not explicitly regulate these additional conditions for concluding a contract. The provision of § 104 of Act No. 134/2016 Coll., on the award of public contracts, as amended (hereinafter referred to as "ZZVZ"), which regulates the subject matter of additional conditions for the conclusion of contracts for the performance of public contracts, is thus in principle the first explicit enshrinement of the issues into the legal text.
In the opinion of the author, however, the text of the provisions of § 104 letter a) ZZVZ, in conjunction with the provisions of § 122 ZZVZ or § 123 of the ZZVZ, does not allow to proceed according to the normal practice of contracting authorities, who, in the event that they reserve the submission of an insurance contract as a condition for concluding the contract, require the selected supplier to submit the required insurance contract immediately before signing the contract for the performance of the public contract.
The provisions of § 104 letter a) ZZVZ stipulates: "In the procurement documentation, the contracting authority may request from the selected supplier as additional conditions for concluding the contract submission of documents or samples related to the subject of the performance of the public contract or the qualification of the supplier".
In the relevant annotated literature [1] the prevailing opinion is that the client's requirement to submit an insurance contract falls precisely under the provisions of § 104 letter a) ZZVZ The same conclusion follows from the text of the explanatory report on the provisions of § 104 of the ZZVZ.[2]
It also follows from the commented literature that the requirement to submit an insurance contract cannot be subordinated to the provisions of § 104 letter e) ZZVZ, because under the given point the legislator thought of other conditions of cooperation (e.g. the dates of the conclusion of the contract, the method of communication between the contracting authority and the selected supplier, etc.).
According to the provisions of § 122, paragraph 3 of the ZZVZ, the contracting authority is obliged to send the selected supplier an invitation to submit originals or certified copies of documents on his qualifications, as well as documents or samples, the submission of which is a condition for concluding the contract, if the contracting authority has reserved them according to § 104 of the ZZVZ.
According to the provisions of § 123 of the ZZVZ, the contracting authority is obliged to send a document to all participants in the procurement procedure without undue delay from the decision on the selection of the supplier "Supplier Selection Notice", which will include, in addition to the report on the evaluation of bids, i the result of the assessment of the fulfillment of the conditions the participation of the selected supplier containing "i a list of documents or samples, the submission of which is a condition for concluding the contract, if the contracting authority has reserved them in accordance with § 104 letter and)"[3]
Supplier Selection Notice is a document by which the other participants are informed about the contracting authority's decision to select a supplier to conclude the contract, and the copy of which logically, it must precede the moment of conclusion of the contract.[4]
The fact that the notification of the selection of the supplier must also contain a list of documents, the submission of which the contracting authority has reserved as a condition for concluding a contract for the performance of a public contract, actually means that the provisions of § 123 letter b) ZZVZ in these cases obligates the contracting authority to assess whether the selected supplier has met the conditions for participation at the latest before sending the selection notice (other than qualifications and others that are verified through a call and documents and information received on the basis of a call according to § 122, paragraph 3 ZZVZ, especially technical or contractual conditions and possibly other special conditions)[5] , and that including the condition of presenting the insurance contract, if the contracting authority reserved its presentation as a condition for concluding the contract.
Therefore, if the contracting authority makes the conclusion of the contract subject to the submission of an insurance contract, the contracting authority must assess the fulfillment of the given condition even before the supplier selection notification is sent within the meaning of § 123 ZZVZ and to explicitly state the result of such an assessment in the given document.
In the opinion of the author, the legislator no longer gives contracting authorities the option, in the event that such a condition for the conclusion of the contract (i.e. the submission of an insurance contract) has been exchanged in the procurement documentation, to wait to assess the fulfillment of the given condition until the moment of the actual conclusion of the contract, however such a procedure may have been previous legal arrangements possible.
In practice, however, we continue to encounter the fact that if, in the tender conditions, contracting authorities make the conclusion of a contract conditional on the performance of a public contract by submitting an insurance contract, they require proof of fulfillment of this condition only when signing the contract itself. It is understandable that, in such a case, the relevant notification on the selection of a supplier in the sense of § 123 ZZVZ will not contain information on the assessment of the fulfillment of the given condition by the selected supplier, which could then be challenged by the other participants in the tendering procedure as a manifestation of the non-transparency of the tendering procedure, as this would doubts could be raised among them as to whether the given condition was even fulfilled by the selected supplier.
If the contracting authority intends to postpone the assessment of the conditions for the conclusion of the insurance contract until a moment directly related to the conclusion of the contract, it seems an ideal solution for the contracting authority to enshrine in the draft contract the contractual obligation of the supplier to submit the required insurance contract within a period calculated from the conclusion of the contract (e.g. by the day after conclusion of a contract, etc.) with the provision that a breach of the given obligation would be sanctioned by the imposition of a contractual fine. In such a case, it would no longer be a condition for concluding a contract in the regime of § 104 letter a) ZZVZ and the given fact would understandably not even have to be mentioned in the notice on the selection of a supplier according to § 123 ZZVZ.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] "According to paragraph 1, the contracting authority may, as an additional condition for the conclusion of the contract, request the submission of documents or samples relating to the subject of the public procurement or to the qualification. It can be, for example, a condition of the contracting authority to submit a bank guarantee for proper performance, an insurance contract or a document of the availability of certain equipment necessary for the performance of a public contract." (see Dvořák, D., Machurek, T., Novotný P., Šebesta, M . and the collective. Law on public procurement. Commentary. 1st edition. Prague: Nakladatelství CH Beck, 2017, p. 634)
"Examples of documents that can be submitted according to letter a) can be an insurance contract, a schedule of performance, a document on the deposit of security, and the like. (see HERMAN, P.; FIDLER, V. et al. Commentary on the Public Procurement Act. Pilsen: Aleš Čeněk, 2016. 589 p. ISBN 978-80-7380-595-1, p. 275)
[2] Regarding § 104: There is an explicit modification of the procedure used in practice, when the contracting authority makes the conclusion of the contract conditional on the submission of documents before its conclusion. These can be originals or certified copies of qualification documents, but also other documents, for example the submission of an insurance contract for the subject of a public contract.
[3] See the provisions of § 123 letter b) point 3 of Act No. 134/2016 Coll., on public procurement, as amended.
[4] The fact that the delivery of the supplier selection notice to the individual participants in the proceedings only begins the blocking period during which the contracting authority may not conclude a contract for the performance of the contract with the supplier (see § 246 ZZVZ), it is clear that the time between sending the supplier selection notice and the first day, when the contracting authority may, according to the law, enter into a contract for the performance of the contract with the selected supplier, shall in no case be shorter than 15 days.
[5] See also Dvořák, D., Machurek, T., Novotný P., Šebesta, M. and collective. Public Procurement Act. Comment. 1st edition. Prague: CH Beck Publishing House, 2017, p. 729
