Judicial protection against the decisions of the National Review Commission (DKOM)
The authors elaborated further on the presented points in an article published in Pravna praksa, no. 2019/39, p. 8-101.
The existing regulatory framework for legal protection in public procurement award procedures does not enable full judicial protection against the decisions of the National Review Commission, which is a fact that has often been criticised as inadequate. The Legal Protection in Public Procurement Procedures Act (ZPVPJN) does not lay down any ordinary or extraordinary legal remedies against the decisions of DKOM, nor is an administrative dispute against it admissible. In the fifth chapter entitled Judicial Protection, it does stipulate two ways of (the mentioned) judicial protection, namely (i) the annulment of contracts entered into based on a public procurement award, and (ii) compensation for damages. However, the court does not rule on the reliability and legality of DKOM’s decisions and they cannot be annulled or amended with these remedies.
Even though the Constitutional Court found that this kind of arrangement is not contrary to the Constitution, concerns about the inadequacy of such a legislative framework remain. For this reason, the proposal to amend the act ZPVPJN (EVA: 2019-3130-0009)2 seemed welcome, as one of its aims was to establish full legal protection against the decisions of DKOM, supplying the option to initiate an administrative dispute. However, a detailed examination of the proposed changes reveals that major changes are not to be expected after all, as the amendment proposal stipulates merely the possibility to file a claim for a declaratory judgement in an administrative dispute, but which does not enable a decision of DKOM to be annulled or amended.
In the applicant’s opinion, the ultimate aim of the legislation concerning public procurement awards and of the proposed amendment is for the public procurement to be submitted and executed quickly and efficiently, because public procurements are used to ensure the goods, services, and construction necessary for performing tasks in the public sector. This is the argument most often used by the proponents of the existing arrangement to resist the possibility of introducing a full judicial protection against the decisions of DKOM. However, the goal of the law of public procurements is also to ensure transparency, fair competition among the providers, and an effective legal protection of the providers against any discrimination and arbitrariness of the contracting authority. This is why the arrangements of judicial protection against some other regulators (e.g. ATVP, AVK etc.) should serve as the model for introducing the option of an administrative dispute against DKOM as well, which would enable such a decision to be challenged with regards to its entire legal and factual basis and would also allow the court to repeal or amend DKOM’s decision; this, however, is not stipulated in the proposed amendment to ZPVPJN.