On 25 March 2020, the Slovak National Council passed Act No. 62/2020 Coll. on certain extraordinary measures in connection with the spread COVID-19 (the “Lex Corona”), which inter alia, amends Act No. 343/2015 Coll. on Public Procurement, as amended (the “Public Procurement Act”).
The amendment enables the contracting authorities to conclude a contract, framework agreement or concession with a tenderer that is not registered in the Register of Public Sector Partners (or whose sub-contractor is not registered therein), provided that (i) a direct negotiated procedure without notification (“priame rokovacie konanie”) can be used and (ii) such agreements are concluded for the purpose of ensuring the protection of life and health during the state of emergency or an extraordinary situation. Such specific conditions pertaining to the direct negotiated procedure without notification may be omitted in case of low value contracts.
The COVID-19 pandemic is recognised as extraordinary situation and thus the direct negotiation procedure may be used by contracting authorities, whereas the Slovak Public Procurement Office emphasises that even during the current situation, public funds are to be spent in compliance with the principles of effectiveness and transparency.
- Ongoing procurement procedures are not automatically suspended
The statutory periods and deadlines regarding public procurement procedures are not automatically suspended. However, from a practical point of view, most contracting authorities are postponing or suspending the deadlines on their own initiative. If a contracting authority has not prolonged deadlines, bidders can request an extension. Bidders are likely to have their request complied with, especially if it is not possible for them to collect all the necessary documents because of reasons out of their control or legal restrictions.
- Extended use of simplified procurement procedures (direct award or negotiated procedure without notification) is allowed
The direct negotiated procedure without notification procedure may be used during and in connection with the COVID-19 pandemic according to the Slovak Public Procurement Office. Contracts can be concluded regarding the provision of goods, performance of construction works or provision of services during this time (as it is considered an extraordinary situation, which could not been foreseen by the contracting authority) even with entities that are not registered in the Register of Public Sector Partners or whose sub-contractors are not registered therein. The awarding of low value contracts is allowed even without fulfilment of statutory conditions required for direct negotiated procedure without notification.
- Taking special measures and extending the use of electronic means during a procurement procedure
Contracting authorities could use accelerated timescales due to state of urgency when open, restricted or competitive procedures with negotiation are used. The state of urgency must be justified by the authority.
If the public procurement process is performed using electronic systems, contracting authorities are encouraged to use live long-distance measures even for the opening of offers (e.g. through video conference). This also applies to presentations or rounds of negotiations.
If the offers have been submitted in paper form or if the bidders require the opening of offers in person, the contracting authority is obliged to postpone the opening of the offers until the restrictions applying to public gatherings are relaxed or cancelled.
- Automatic suspension of certain deadlines for remedies
No automatic suspension of deadlines for remedies has been implemented yet.
- Which possibilities does a contracting authority have, if no offer has been submitted?
If no (suitable) tenders or no (suitable) offers have been submitted, the contracting authority must cancel the tender. Subsequently, the contracting authority shall announce whether there will be new tender in relation to the original procurement procedure. Furthermore, direct negotiated procedure without notification may be used.
- Modifications of existing contracts in the context of COVID-19
Due to the current COVID-19 pandemic, it is likely that existing contracts, framework agreements or concessions may be amended without starting a new tender procedure. Particularly if the necessity of contract modification resulted from circumstances which could not have been foreseen by the contracting authority even while exercising due care and if such modification does not affect the nature of the existing contract, framework agreement or concession. The modification of existing contracts remains subject to statutory limitations (e.g. additional value must not exceed 50% of the value of the original contract). As such, it will depend on the specific contract and the situation as to whether modifications would be possible.