public procurement | In Principle

The Public Procurement Law defines what contracts between parties and concerning what subject matter are regarded as a subcontract, and also provides mechanisms protecting the interests of certain subcontractors.

The content of a procurement subcontract is shaped not only by the intent of the parties, but also by the Public Procurement Law, the Civil Code, the terms of reference for the procurement, and the actions taken by the contracting authority.

The contracting authority may require in the terms of reference that a portion of the procurement be performed personally by the contractor. Absent such restriction, the contractor may assign performance of even the entire contract to a subcontractor.

The content of a procurement subcontract is shaped not only by the intent of the parties, but also by the Public Procurement Law, the Civil Code, the terms of reference for the procurement, and the actions taken by the contracting authority.

Conditioning payment to the general contractor on prior payment of the subcontractors’ fees and the ability for subcontractors to obtain direct payment from the contracting authority protect subcontractors against dishonest general contractors.

The contracting authority may require the contractor to identify its subcontractors in its offer. Then if the contractor wants to use a different subcontractor, it must assure that the conditions for participating in the proceeding are still met.

For the second time this year, the Constitutional Tribunal has considered a challenge to the court fees for appeals against rulings by the National Appeals Chamber in public procurement cases.

A certain capacity may be offered more than once in the same tender—just as a contractor may submit its own bid in a tender while also making its capacity available to another bidder in the same tender.

At the stage of announcing competitive dialogue, the contracting authority need not have a functional and operational programme ready, but this does not stand in the way of commencing the procedure and specifying the value of the procurement.

The Supreme Court has ruled that cases seeking refund of a bid bond lie within the jurisdiction of the civil courts, finally resolving doubts surrounding the legal recourse a contractor should follow to reclaim a deposit retained by the contracting authority.

An amendment to the Public Procurement Law will increase the threshold for application of the public procurement regime. Contracts and contests worth no more than EUR 30,000 will be exempt from procurement procedures.

In public procurement proceedings, a party dissatisfied with a ruling of the National Appeal Chamber will still have to pay high fees for judicial review.