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Procurement law to change

A DEBATE lasting more than half a year over how the state should procure goods and services should soon bear fruit as the ruling Smer party is geared to push through its large-scale revision to the public procurement rules in parliament. Interior Minister Robert Kaliňák’s 24-page draft has undergone several changes since its first version, which provoked criticism from political ethics watchdogs.

A DEBATE lasting more than half a year over how the state should procure goods and services should soon bear fruit as the ruling Smer party is geared to push through its large-scale revision to the public procurement rules in parliament. Interior Minister Robert Kaliňák’s 24-page draft has undergone several changes since its first version, which provoked criticism from political ethics watchdogs.

The parliamentary economic committee in early March approved an extensive 76-point amending proposal to the original draft submitted by Kaliňák. Though deputies from the opposition parties called on Kaliňák to withdraw the draft revision to the law on public procurement, arguing that they had not been given enough time to review the extensive changes in the proposal submitted by Smer deputy Michal Bagačka, the minister said there was no reason for him to stop the revision.

“There is not the slightest reason for the withdrawal [of the draft]” said Kaliňák, as quoted by the TASR newswire, adding that the draft’s preparation had gone on for nine months. “The claim that it was prepared hastily is not true.”

Nevertheless, the original 42-page revision is being modified through a 24-page deputy’s amending proposal, the Sme daily reported.

Kaliňák also noted on March 5 that with the revision the government had tried to acknowledge comments submitted by the opposition.

“The huge revision to the law on public procurement, done through a smaller revision adopted in a fast-tracked legislative proceeding, [is] now one huge draft revision, which includes probably every second point of the original draft revision,” Lucia Žitňanská said, describing for TASR how she sees the process of producing the revision, adding that the deputies obtained the draft revision less than 24 hours before the meeting of the committee. “They [MPs] cannot even judge what is positive and negative in the proposal.”

Sme presented a selection of changes that Smer made to the original draft. In one such change, Smer extended the range of orders which the state can procure without restrictions. These will include, for example, the acquisition of books, musical instruments or performances by artists. This should apply to services and goods worth up to €400,000, and buildings up to €5 million, according to Sme.
A new Board of the Public Procurement Office (ÚVO) should be established, but instead of its members electing the chair and vice-chair, the chair and vice chair of the ÚVO will acquire these positions. Kaliňák is also changing the method by which the cabinet would appoint the remaining seven members, with NGOs being able to propose candidates. Kaliňák also wants to make the board’s session minutes completely public, Sme reported.

Based on the new rules it should not be possible to attach addenda to contracts signed by the state via a tender. Exemptions will be subject to approval by the ÚVO Board. While originally it was not possible to appeal the approval or disapproval of an addendum, it will now be possible to have a court look into these decisions, according to Sme.

Partner with the law firm TaylorWessing e/n/w/c Advokáti Andrej Leontiev, who earlier criticised Kaliňák’s draft, expressing doubts about the state procurement authority’s resistance to political influence, said that the ministry has included a large portion of experts’ critical comments.

In an interview with public nroadcaster Slovak Radio (SRo), Leontiev noted that now the draft includes a provision that stipulates that courts can look into a decision of the Board of the ÚVO on contract addenda, adding that “this is very positive”, because if someone doubts the board’s decisions they can turn to the courts.

Smer’s proposal had originally contained a regulation stipulating that each tender with five participants was regarded as undoubtedly non-discriminatory. The amending proposal eases this regulation and enables the competition to point out discrimination.

According to Sme, Kaliňák was highly criticised for introducing into the revision a system of references. This is to be a subjective evaluation of the quality of goods or services and the speed of delivery. Experts pointed out that tenders could be tampered with via references, while companies would not be able to defend themselves. Based on Kaliňák’s amending proposal, the ÚVO will check the objectivity of references.

Under the previously proposed rules bidders would have been able to use statutory declarations to show that they met all the conditions, and detailed documentation submitted only by the winner. If the winner failed to submit such documentation the state would conclude the contract with the second-best bidder. Critics pointed out the vulnerability of the measure, which opened the door to fake companies which could influence the result of a tender even if they did not win. Based on the new rules, the state is to look into the statutory declarations of not only the winner, but also the second- and third-best companies, Sme reported.

Jana Liptáková contributed to this story

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