A quiet “rubbish amendment” to the Public Procurement Act

 Authors: JUDr. Vilém Podešva, LL.M., Mgr. Michal Kožár, Mgr. David Mlíčko

Another amendment to Act No. 137/2016 Coll., on Public Procurement is on the way! One of the amendments to the previous Act No. 40/2004 Coll. (for those who still remember) was called the “diamond amendment” – a new regulation of concession awards was added to the Act at that time as part of an amendment regarding the handling of uncut diamonds. In the same vein, the upcoming amendment would instead be a “rubbish amendment”.

As a part of the amendment to the new Waste Management Act the Chamber of Deputies have also passed a motion of the Economic Committee, which will amend the very fundamental principles in Section 6 of the Public Procurement Act.  According to the text that is yet to be approved by the Senate and to be signed by the president of the Republic, the contracting authority must comply with the principles of socially responsible procurement, environmentally responsible procurement and innovation, within the meaning of the Public Procurement Act, when setting award criteria, evaluating offers and selecting suppliers. However, this obligation is applicable only “on condition that it is possible to do so with regard to the nature and purpose of the procurement“. In addition, the contracting authority must duly justify its choice.

Even though a responsible approach by the contracting authority is undoubtedly desirable, the amendment itself is by no means well drafted. Leaving aside the fact that it is not at all clear during which actions the contracting authority would have to justify their choice (this obstacle can be easily overcome by interpretation), it will be interesting to see opinions on when the obligation should be applied “with regard to the nature and purpose of the procurement“, and how the contracting authorities will prove that the obligations should not be applied to certain procurement procedures, or that only some of the obligations should apply. And if the contracting authority does not comply with these obligations, it will be interesting to see how and on what grounds they will be sanctioned for breaching these principles.

Do you know already?J The amendment is expected to come into effect on 1.01.2021.

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