Contributions and Interviews
Amendment to the Public Procurement Act (ZJN-3) brings extensive changes in the public procurement procedure
19. 08. 2021
On 13 July 2021, the Slovenian Parliament adopted the Act Amending the Public Procurement Act (ZJN-3B). The amendment, entering into force on 1 January 2022, implements numerous important changes and novelties in public procurement procedures, to which both public contracting authorities and all potential tenderers must pay particular attention.
The first of the significant changes is the raising of the threshold for the introduction of a public procurement procedure. Thus, the threshold for a public supply contract, public service contract, or design contest is increased from EUR 20,000 to EUR 40,000 and for a public works contract from EUR 40,000 to EUR 80,000. The stated thresholds are also applicable in the instance of the division of contracts into lots and procurement of foodstuffs, whereby it is now clearly stated that for these contracts the value of EUR 10,000 without VAT is taken into account. With this change, the legislator primarily wanted to stimulate the local economy.
In procedures for the awarding of a low-value contract, Member States have the autonomy to regulate the national procedures up to the European threshold. In addition to the public supply contract and public service contract, the national procedure for the awarding of a low-value contract will be now used also for public works in the field of construction. The threshold shall thus increase significantly and shall reach the European threshold, i.e. the threshold is increased from the current threshold of EUR 500,000 to EUR 5.35 million (without VAT). Accordingly, it is now also clearly stated that the national procedure for the awarding of a low-value contract is used in all cases where it is not necessary to send a notice for publication to the Publications Office of the EU.
The amendment introduces four new exceptions to the application of public procurement rules, namely:
- public procurement in the general field which is awarded for resale or lease to third parties, provided that the contracting authority enjoys no special or exclusive right to sell or lease the subject of such contracts and that other entities are free to sell or lease it under the same conditions as the contracting authority if the value of the public contract does not exceed the value beyond which a contract notice must be published in the Official Journal of the EU;
- public supply contract which is intended for protocol gifts or other forms of promotion of the Republic of Slovenia, if the value of the public contract does not exceed the value beyond which a contract notice must be published in the Official Journal of the EU;
- public procurement of foodstuffs, if the value of the public contract does not exceed the value beyond which a contract notice must be published in the Official Journal of the EU;
- public service contract of statutory audit services, as defined in the Auditing Act, if the value of the public contract does not exceed the value beyond which a contract notice must be published in the Official Journal of the EU.
The amendment affects also the competitive procedure with negotiation, which from now on can also be continued, provided that certain conditions are met, in a way that the contracting authority does not publish a contract notice and only invite tenderers to submit tenders.
The contracting authorities should also pay attention to the change regarding the determination of who is and who is not a “public body”. Namely, the Ministry of Public Administration will no longer assess whether an entity is a public body and thus subject to the provisions of ZJN-3 as according to the amendment each entity will be responsible to determine it by itself. Due to legal certainty, it is also prescribed that a contract award decision shall become final on the date when no legal protection can be requested against it in pre-review or review procedure under the Legal Protection in Public Procurement Procedures Act. Additionally, the term economic operators with negative references is replaced by the term economic operators with imposed accessory sanctions for exclusion from public procurement procedures throughout the wording of ZJN-3.
In addition to the above, the contracting authority will no longer be obliged to publish information on the incomplete procedure, while evidence regarding the exclusion grounds shall not be older than 4 months from the deadline for submission of requests or tenders, or obtained no later than 90 days from the deadline for submission of requests or tenders. The contracting authority may also reject the tender if the evidence provided does not explain the low level of the proposed prices or costs and it may ignore obvious or insignificant errors in documentation.
Last, but not least, two new minor offences have been newly defined for which a legal person may be fined between EUR 10,000 and EUR 50,000, namely if it sets the price as the only criterion for awarding a public contract in cases where this is not allowed (fourth and eighth paragraph Article 84 of ZJN-3) and if it does not serve the decision on candidates and tenderers in the manner as specified in the tenth paragraph of Article 90 of ZJN-3. A fine in the amount of EUR 25,000 to EUR 100,000 shall be imposed on a legal person if as a tenderer or candidate in a public service contract or public works contract fails to notify the contracting authority of any changes in information concerning subcontractors during the performance of the contract. A new special article regarding the statute of limitation of minor offences has also been implemented, which occurs three years after the day the minor offence was committed. After each interruption, the statute of limitation begins to run again, but the minor offence procedure is no longer possible when twice as much time has elapsed, as prescribed by law for the statute of limitation on the minor offence procedure.