Amendment to the Legal Protection in Public Procurement Procedures Act
In late 2019, the amendment to the Legal Protection in Public Procurement Procedures Act (“ZPVPJN”) was adopted, introducing some important modifications to the existing regulatory framework of the legal protection in public procurement procedures. This article gives a brief overview of those new features of the ZPVPJN that significantly affect the position of the bidders and the contracting authorities in public procurement procedures.
Administrative dispute against the decisions of the National Review Commission (“DKOM”)
Until recently, there were no legal remedies against the decisions of the National Review Commission (DKOM). This kind of arrangement was often criticised by the expert public, as it was questionable in terms of guaranteeing the constitutional right to judicial protection. The new ZPVPJN somewhat alters this and provides for the possibility of an administrative dispute against the decisions of the DKOM. However, no fundamental changes in the concept of the legal protection in public procurement procedures are to be expected after all, as the court’s decision in an administrative dispute will be limited to determining any possible illegality of DKOM’s decisions, while the court will not be able to change or abolish it.
The new Article 39.a of the ZPVPJN, which provides for the possibility to file an administrative dispute, enters into force on 1 January 2021 and an administrative dispute will be able to be filed only against those DKOM decisions that are submitted after that date.
In light of the fact that the court’s decision will be limited only to determining the possible unlawfulness of DKOM’s decision, it will be case law that determines whether or not eligible plaintiffs1 will actually use the option to lodge an administrative dispute, which will be possible from early 2021 onward. For the sake of establishing judicial oversight over DKOM and the possibility of creating case law in the field of public procurement law, it would be beneficial for there to be as many public procurement proceedings as possible for the court to decide. However, any potential plaintiffs in an administrative dispute will not be pleased by the information that the court fee for an administrative dispute will not be EUR 148, which is the standard fee in an administrative dispute, but the amount will be multiplied thirtyfold, meaning the court fee will amount to almost EUR 4,500. It will therefore be necessary to assess in each individual case as to whether or not the plaintiff could even improve their position by filing an administrative dispute at all – this assessment will in most cases likely be connected to the issue of compensation for damages, regarding which the ZPVPJN expressly states that it will not be the subject of an administrative dispute and will be evaluated in a separate proceeding.
The passing of the amendment to the ZPVPJN has also delayed the launch of the eRevizija portal. It has already been set up and is available at www.portalerevizija.si, but will not be in use until 1 January 2021. More information on the new eRevizija portal is to follow in one of the future articles on public procurement.
1. These are the applicant of the review claim, the contracting authority or the chosen provider.