Changes to the Public Procurement Law – Take Six
Procurement Law – No Amendments in 2023
Since 2018, we have been publishing an annual update on amendments to the public procurement rules and system of remedies under Slovak procurement law. The appetite for changes to the procurement rules seems insatiable so there are now more than 20 amendments to the law, which was passed in 2015, and one can bet that this is far from the final count. Granted, there is always room to improve legislation, but constant changes mean that it is extremely difficult to identify what the rules are even for professionals. The year 2023 was extraordinary as, for the first time since the law was adopted in 2015, no amendment to public procurement laws was passed. Things are not so easy though, as older amendments came into force and another one will hit in April 2024. According to the latest information, the state is also preparing a completely new, "modern and flexible" law on public procurement. We believe that they mean it well and that this time it will not turn out like always. So, there still is and will be something to write about and we are giving you our sixth take on the changes in public procurement.
Professionalization of Public Procurement
The previous management of the Public Procurement Office was a huge fan of professionalization of public procurement and convinced the government and parliament of its necessity. A robust regulation was passed in 2022 to take effect starting 1 April 2024. From then on, all but very low-level tenders will have to be administered by certified professionals registered with the Public Procurement Office who have passed an exam. Mandatory exams will apply to everybody, be it an elementary school graduate, a law university professor or an attorney at law registered with the bar. Certified professionals will be liable for irregularities in tenders and face severe sanctions if the tenders they will oversee will be found in breach of law. Not surprisingly, a significant portion of experts active in public procurement and the new management of the Public Procurement Office oppose the regulation as too robust and bureaucratic, not to mention potential consequences for the experts in case of a violation of law, which is, mildly put, not always easy to interpret. The office tried two times to get rid of the regulation by means of an amendment to the law but failed to succeed on both occasions, so they came up with a solution that should enable virtually everybody to pass the test by. Exams are on-line and candidates may take them at home with their own electronic equipment. To fail this would require a lot of bad luck. From the perspective of lawyers who had to pass extremely difficult bar exams and are liable for any wrongdoings based on bar laws and regulations, we totally concur that the regulation is just additional red tape and hindrance to business. We support the way the current management of the Public Procurement Office addresses the regulation but the massive liability which the experts will face is not going to go away unless another amendment is passed.
Starting mid-October, Slovakia launched new electronic forms (eForms) to collect data from contracting authorities. This is based on the regulation of the European Commission 2019/1780 from 23 September 2019. Those who expected 4 years to be sufficient to implement the new eForms might be surprised as the launch was a huge flop. It has been clear since day one that the effects of the rollout were underestimated if not completely ignored. Due to the enormous number of problems the new system caused in a matter of days, unsatisfaction escalated to the point that procurement experts had to make a concerted effort to ask the Public Procurement Office to fall back to the former system. The Public Procurement Office is trying to mitigate the effects of the reform by offering training free of charge, but it remains to be seen if this will do the trick or if we will follow the Czech Republic, which postponed the application of eForms to 1 February 2024.
Expectations for 2024
During the election campaign, the current prime minister expressed his belief that the Public Procurement Office is the biggest hindrance to projects in Slovakia. It will be interesting to observe how this pre-election statement will translate into real life policy. The Public Procurement Office is indeed very powerful and influential, and its reconstruction or even total elimination will be strongly resisted by the media and third sector. Another complication is the fact that based on the legislative development of 2022, the Public Procurement Authority became an integral part of the EU Funds Management System in relation to the 2021 – 2027 Programming Period. On the other hand, the rules and their application in Slovakia are not conducive to the smooth and quick delivery of projects, and simplification is more than welcome. Either way, we are sure there will be plenty to comment on in our annual review in 2024.
JUDr. Ján Azud
RUŽIČKA AND PARTNERS s. r. o.