Changes to public procurement act in the making

Ljubljana – The government has drafted changes to the public procurement act that expand the definition of low-value contracts, and under which contacts valued at over EUR 10,000 would be published exclusively on the public procurement portal. The changes also look to soften the rules for the exclusion of bidders with outstanding liabilities.

In line with the wording of the changes drafted by the Public Administration Ministry, also to be defined as low-value contracts are contracts in the construction sector up to the value of EUR 5.35 million, as is the upper limit at the EU level.

While the low-value contract procedure is a simplified procedure, the ministry says it is nevertheless a transparent procedure that enables the contracting authorities to include negotiations. This may contribute to greater economy of public procurement, while there are no risks of lower transparency, it adds.

As for transparency, the changes also introduce a deadline by which the contracting authority needs to respond to questions from potential bidders, and stipulate that the entire documentation needs to be published exclusively on the public procurement portal.

Also to be exclusively published on the e-procurement portal are all decisions to award public contracts, including those that are awarded in a negotiated procedure without prior publication (with the exception of urgent procedures).

In the case of public contracts whose estimated value does not reach the EU thresholds, certain exceptions could be allowed by law.

According to the ministry, such an approach is suitable for public procurement or contracting authorities whose specifics make it difficult for them to pursue the objectives of economy or other strategic guidelines if they are forced to procure in line with law.

Assessed as suitable in this respect is public procurement of food or foodstuffs, public procurement of goods for re-sale (pharmacies, for example) or public procurement for protocol purposes.

The changes also introduce rules for reporting of public contracts that do not require the public procurement procedure due to their estimated value.

In order to ensure greater transparency, the lists of such contracts (over EUR 10,000 excluding VAT) will be published exclusively on the public procurement portal, with the possibility of publication on the website of the contracting authority being excluded.

Also being changed are the rules for the exclusion of bidders with outstanding liabilities, as the current act stipulates the exclusion of bidders whose outstanding liabilities related to taxes and other contributions exceed EUR 50.

The ministry argues that this requirement has proved to be grossly disproportionate in large infrastructural projects, when the contracting authority is forced to exclude the most favourable bidder in a multi-million contract over outstanding tax liabilities of some EUR 100, which are sometimes related only to minor accounting issues.

The changes regulate this by enabling such bidders to eliminate the irregularities, which is precisely the purpose of the reasons for the exclusion and the corrective mechanism, the ministry says.

Also proposed in the reformed public procurement act is a provision that excludes a bid whose price does not cover all labour costs.