Repeal of the Regulation on the Award of Small Public Contracts
The amendments to the Public Procurement Act repeal the Regulation on the Award of Small Public Contracts in order to reduce the number of different types of procedures for assignment of public contracts. The procedures which until now were assigned under the repealed Regulation are now regulated by the Public Procurement Act.
New value thresholds for assigning public contracts
With the new amendments having taken effect on 26.02.2012, the award procedures for public contracts are nowdivided into three groups depending on their total value:
Public Contracts of a total value equal to or higher than the “European thresholds” determined with a Regulation by the European Commission; such public contracts are governed by the general procedures of the Public Procurement Act.
Public Contracts of values equal to or lower than the so-called “national thresholds”; these public contracts are regulated by the general procedures of the Public Procurement Act, but with some mitigation – the so-called “simplified rules”. In fact these public contracts until the amendments of the law used to be assigned under the Regulation on the Award of Small Public Contracts – now the difference is in the value of the thresholds which have been increased by 20%.
Public Contracts of a lower value for which depending on the case either a procedure will be conducted under the new chapter 8a “Award of public contracts by public invitation”, or the procedures are not obligatory if the value is supported with primary accounting documents.
Amendments related to the procedures for assigning of public contracts
The contracting authority is no longer required to publish certain documents in the State Gazette (preliminary announcement, announcement for a public order)
The contracting authority is provided with the following possibility: on their own initiative or at the request of third parties to submit within 14 days of the publishing of the announcement for a public contract in the Public Contracts Register changes related to their legitimacy or that of the tender documentation, the remedy of omissions and the correction of obvious mistakes. The changes are made by publishing a Decision for Amendments with the Register of Public Contracts, the so called “Corrigendum”. The activity and/or the delivery of the subject of the public order though cannot be changed.
Provision is made for the possibility to directly award public contracts for utility services to companies related to the contracting territorial body of the state authority, but only under the conditions of the Public Procurement Act.
The preliminary control of public contracts financed partially or wholly by EU funds, will be exercised exclusively by the Public Procurement Agency.
The contracting authority is given the possibility to independently decide (which is not obligatory anymore as it was previously under the Public Procurement Act) whether to employ outside experts for the procedure and in the commissions for examining, estimating and classifying the offers.
The contracting authority is given the right to exercise control over the activity of the Commission on examining, estimating and classifying the offers, including giving them compulsory instructions.
Introduced is the requirement for the resolution of the Commission for examining, estimating and classifying the offers to be adopted by the contracting authority with a delivery and acceptance protocol.
For the purpose of avoiding discrimination and other frequently encountered mistakes, the law now expressly stipulates that in the event of participation of a union that is not a legal entity, the criteria of selection is applied to the participating union – not to the separate members of the union, except with regard to the documents relating to the registration, licenses, etc.
It is provided that if the contracting authority has a requirement for a minimal turnover related to the subject of the order, that turnover cannot exceed the threefold estimated cost of the public procurement order.
A new provision in the Public Procurement Act introduces relief for the participants in the procedure for public contracts for construction since they are not obligated to prove conditions already proven when entering the Central Professional Register of the Constructor.
The contracting authority does not have to require a guarantee for participation or for execution in the event of a public procurement procedure without announcement, including for public contracts of a low cost and when the execution of the contract is separated in stages, the amounts of the bank guarantees can be released piecemeal according to the staged execution of the public contract.
The difference from the authorized value of the offers – a reason to demand a written explanation from the participants, is reduced from 30% to 20% to avoid dumping prices.
In the case of public contracts for legal services the contracting authority is given the opportunity to conduct negotiation procedures without previous announcement when the public contract for legal services is up to a certain amount.
Amendments related to appealing public contracts and the validity of the contracts
· Some acts of omission and commission of the contracting authority, which do not have a decisive significance for the outcome of the procedure, but nevertheless hinder the access or the participation of interested parties in the procedure, can be appealed before the Commission on the Protection of Competition (for example – the refusal to send or provide specific documents, the refusal to provide additional explanations, copies or access to the Minutes of the Commission).
· An essential amendment is introduced in connection with appealing of the decision for the starting of the procedure, which now can be repealed only after the expiration of a 14-day term during which the contracting authority can make changes in the conditions of the public contract.
· The circle of persons allowed to appeal against the decision for announcing a public contract and/or the decision for amendments is enlarged and includes professional associations and organizations which now will be able to protect the interests of their members.
· Significant changes have been made to the administrative penalty provisions of the Public Procurement Act where many new texts have been introduced aiming to cover a larger range of violations of the law.