Defense against Incorrect Procedure of Contracting Authority
DEFENSE AGAINST INCORRECT PROCEDURE OF CONTRACTING AUTHORITY
The Office performs surveillance of compliance with the rules set in the Public Procurement Act and award criteria in relation to awarding:
§ below threshold and above threshold public contract,
§ concessions except for small scale concessions pursuant to the Article 178 of the Public Procurement Act
§ In addition, the Office also performs surveillance of compliance with the rules set for special procedures pursuant to the Section 6 of the Public Procurement Act.
The Office is not authorized by law to review procedures of contracting authority in relation to the award of a small-scale public contract. However, if the contracting authority awards a small-scale contract voluntarily within the procurement procedure pursuant to the Public Procurement Act, it is obliged to comply with all the provisions of the Public Procurement Act and only then the review of the award procedure lies within the Office´s scope of competence. The Office’s power to exercise supervision of contracts´ due publication and prices actually paid pursuant to the Article 219 of the Public Procurement Act shall not be affected.
In addition, the Office exercises supervision of procedures of the state, districts and municipalities (i. e. contractors) in relation to contracts which seeks to ensure transport services pursuant to the Act No. 194/2010 Coll. on Public Services in Public Passenger Transport the moment these contracts are concluded.
Pursuant to the above-mentioned provisions the Office is authorized to:
a) decide whether the contracting authority awarded a public contract or specific procedure in compliance with the Public Procurement Act,
b) decide whether the contracting authority’s procedure, which leads to awarding of a public contract outside procurement procedure, is in compliance with the Public Procurement Act,
c) decide whether the contracting authority chose the transport company in compliance with the relevant act and the directly applicable EU legislation,
d) deal with offences,
e) impose remedies and fines for committing offences,
f) decide on the proposal after the termination of innovation partnership.
In addition, pursuant to the Act No. 255/2012 Coll. (the so-called Inspection Code) the Office controls the fact that contracting authority procedures in relation to award of a public contract and concluding contracts on public services in passenger transport are in compliance with relevant acts.
Competences mentioned in the above-mentioned points from (a) to (f) are exercised by the Office solely within administrative proceeding, which is initiated on the basis of authorized person or ex-officio.
Application for review Proceedings
The application for initiation of the review proceedings shall be submitted by a supplier (i.e. the individual who offers supplies, services or construction services), who is at risk of or has already suffered harm by the procedure of contracting authority or a contractor relating to the award of below or above threshold public procurement, including concession except for small scale concessions, moreover, in relation to special procedures pursuant to Section 6 of the Public Procurement Act and concluding of contract on public services in public passenger transport. In addition it shall be a supplier who filed justified objections towards the contracting authority at the same time (in case the supplier was authorized to do so). It is possible to file the application for imposing a ban on the performance of the public contract even without prior filling of such objections.
The application is successfully submitted on condition the deposit is paid on the Office´s bank account in proper and timely manner.
Within administrative proceedings initiated on the basis of the application, the applicant shall be considered to be a party to the proceedings. In this context the applicant is entitled to:
- comment on the case, mention and propose various facts
- propose evidence
- make changes of the proposal (especially in relation to partial or complete cancellation)
- access the file, make notes and copies from the file
- comment on the facts supporting the decision
The complaint which could lead to initiation of administrative proceedings ex-officio in relation to review of contracting authority procedures may be submitted by any entity (natural or legal person, supplier or any other individual). In particular, this applies to individuals who were not authorized to file justified objections towards the contracting authority in the course of the award procedure or the call for tenders (they were not interested in public contract itself or they did not intend to conclude a contract on public services in public passenger transport). It also applies to suppliers who filed these objections but do not intend to submit application for initiation of the review proceedings to the Office.
The complaint submitted by the supplier, who did not filed objections, is not dealt with by the Office.
Submitting the complaint does not automatically mean initiation of administrative proceedings ex-officio. The Office is not obliged to initiate administrative proceedings on the basis of the complaint. In general, initiation of administrative proceedings depends on the result of complaint investigation exercised by the Office.
The complainant is neither party to the investigation nor to administrative proceedings which follows the investigation. Thus, any procedural rights are not guaranteed to the complainant. The complainant acquires only the right to request the Office to inform him or her about the result of investigation concerned.