Public procurement regulation in Slovakia

October 2018

• Journal of Public Contracts (Vestník verejného obstarávania) administered by the Office for Public Procurement (OPP), accessible online.

• The contracting authority is free to choose between the open and the restricted procedure (Sec. 66 and 67 APP).
• a negotiated procedure with publication can be carried out where goods, works or services comply with at least one of the following conditions (Sec. 70 APP):
  • the needs of the contracting authority cannot be satisfied without the adjustment of the already available solutions,
  • they include a proposed solution or innovative solution,
  • the contract cannot be awarded without negotiation due to special circumstances,
  • the technical specifications cannot be precisely determined,
  • during the previous open procedure or restricted procedure, all bids were irregular or unacceptable.
• a direct negotiated procedure may only be used if at least one of the following conditions is fulfilled (Sec. 81 APP):
  • in the previous open or restricted procedure, no bid was submitted or none of the tenderers or bids complied with the participation conditions (provided that the original conditions of awarding the contract did not change substantially),
  • the goods, works or services may only be provided by a certain economic operator (artistic reasons, non-existing competition or protection of exclusive rights),
  • the supply, works or service contract will be awarded due to an emergency that was not caused by the contracting authority and could not have been foreseen by the contracting authority, and neither an open procedure nor restricted procedure or negotiated procedure with publication can be conducted due to the time pressure,
  • the procurement is for research, experimental, study or development purposes (does not apply to the large-scale production associated with economic activities aimed at achieving profit or covering research and development costs),
  • in the case of the supply of supplementary goods from the original supplier, if the change of the supplier would cause incompatibility or unreasonable technical difficulties in operation or maintenance,
  • in the case of procurement of goods with quoted prices and which are purchased directly on an exchange,
  • in the case of procurement of goods offered under particularly favourable conditions by a liquidator, administrator or executor,
  • the service contract follows a design contest conducted under APP that is awarded to the winning candidate, or
  • new construction works or services that comply with an existing basic project that states the scope of possible additional works or services, and further detailed conditions for their awarding are met.
• a competitive dialogue can be carried out (Sec. 74 APP) where goods, works or services comply with at least one of the conditions referred to in Section 70 APP (see above). The objective of the competitive dialogue is to find and define the most suitable solution for the contracting authority. Bids can be evaluated only on the basis of the best price-quality ratio.

It is possible to submit objections against any actions of the contracting entity (Sec. 170 (3) APP). The objections have to be preceded by the delivery of the request for remedy.

• Objections must be delivered to the OPP and the controlled entity within 10 days of the event in question at the latest.
• Failure to observe this time limit leads to the preclusion of further appeals.

• The contracting authority and/or contracting entity may conclude a contract (or framework agreement or concession contract, as the case may be) with the successful tenderer no earlier than sixteen days after sending the information about the tender evaluation results (provided that no request for remedy was delivered or that no objections were delivered in due time).

• For the first stage of the review proceedings (submission of objections), the competent authority is the OPP. Objections have to be delivered to the both OPP and controlled entity (contracting authority).
• If the complaint is not successful, it is possible to appeal to the Board of the OPP.
• After that, the next stage is an appeal to the court against a final OPP board decision.

• For second stage proceedings (i.e. before the OPP) there is no fee but the petitioner must pay a deposit (to be repaid if the petition is successful). The deposit has to be credited to the OPP's account at the latest on the working day following expiration of the period determined for delivery of the objections. The deposit amount depends on the contract and the contract value, and ranges from EUR 600 to 150,000. Should the OPP reject the objections, the deposit becomes state budget income (Sec. 172 APP).
• The appeal procedure is linked to an additional deposit.
• At the subsequent stage (court proceedings) a court fee of EUR 70 applies.

• Appeal to the Board of the OPP does have a suspensive effect (Sec. 177 (1) APP).

• The OPP will impose on the contracting authority or contracting entity a fine amounting to:
  • 5% of the contractual price if it fails to fulfil the obligation to conclude the contract under APP in the manner or according to the procedure set out by the APP,
  • 5% of the contractual price if it breaches the tender evaluation criteria,
  • 5% of the total of the contractual prices if it unlawfully divides the contract to avoid using the procedure for awarding an above-threshold contract or a below-threshold contract,
  • 5% of the contractual price if it concludes a contract with an entity that failed to comply with its duty to register with the public sector partners register,
  • 2% of the contractual price if it breaches any other obligation or prematurely concludes the contract.
  • A fine of EUR 1000 is levied for a delay of up to 15 working days in concluding the contract or fulfilling any other obligations. An additional EUR 1000 will be levied for each subsequent period of 15 days, or part thereof.
  • EUR 500 to EUR 30,000 for breaching any obligations referred to in the APP or failure to fulfil the obligation imposed by an OPP's decision.

• The contract may be amended after signing if:
  • the original contract contains clear terms and conditions for amendments and changes,
  • the supplementary goods/performance are necessary and the change of supplier is not possible due to economic or technical reasons or would cause significant difficulties or double expenses,
  • unforeseen circumstances occur,
  • the original supplier will be replaced by another supplier defined in the contract, i.e. the legal successor of the existing supplier,
  • no substantial modification to the original contract is made, regardless of the value of the change,
  • the value of all modifications is lower than the financial limit (for below-threshold contracts) and at the same time lower than 10% of the contract value, in the case of goods supply contracts or service contracts; or lower than 15% of the contract value, in the case of construction works contracts.
• A modification of the contract, framework agreement and concession contract must be in writing.

• The use of e-procurement has been mandatory since 19 October 2018. According to Sec. 20 (1) APP, communication and information exchange in public procurement must take place in writing, through electronic means.
• An e-signature may be required by the OPP if it is necessary in relation to the level of potential risk. Usually an authentication in the e-procurement system allowing the tenderer to be identified or a simple e-signature will suffice. A qualified e-signature is necessary if required by law or the contacting authority/entity.