The National Assembly of the Republic of Slovenia adopted an amendment to the Legal Protection in Public Procurement Procedures Act (“Amended Act”) which came into effect on 19 December 2019, apart from Article 39.a, governing the newly introduced administrative dispute, which will be effective as of 1 January 2021.
The amendment represents a step towards resolving difficulties that Slovenia has been facing in the field of public procurement, especially when it comes to large infrastructure projects. The most recent example of the latter is the tender procedure for the construction of Slovenia’s half of the second tube of the Karavanke tunnel to Austria, when the entire procedure took more than two years as Slovenia’s public procurement legislation allowed filing of reviews practically without any substantial limitations, which will be, by the Amended Act, curbed to some extent.
The aim of the Amended Act is to ensure effective legal protection against infringements in public procurement procedures, specifically to (i) ensure the increase of independence and professionalism of the national review body, competent to provide legal protection in public procurement procedures, the National Review Commission for Reviewing Public Procurement Award Procedures (“National Review Commission”), (ii) increase the effectiveness of legal protection against infringements when it comes to large infrastructure projects, and (iii) establish the legal basis for judicial protection against the decisions of the National Review Commission.
The outline of the adopted novelties is presented below.
Faster and more effective procedure
To ensure faster decision-making when it comes to large projects, review claims in relation to public procurement procedures with an estimated value of at least EUR 10,000,000 shall be given priority. In case the National Review Commission orders the contracting authority to remedy the infringement made in the public procurement procedure, the contracting authority must issue a new decision in 30 days. Additionally, it is no longer possible to accumulate reviews in the same or repeated public contract award procedure by alleging the infringements which were or should have been known to him upon submission of the first request. Only the infringements that significantly influence the procedure are subject to review.
Judicial protection against the decisions of the National Review Commission
To ensure legal certainty and uniformity, the Amended Act provides the option to challenge the decisions, adopted by the National Review Commission in administrative dispute proceedings before the Administrative Court in Ljubljana. The action must be filed no later than 30 days after the parties have received the decision. The court shall deliver its decision in 90 days. The effects of the action are non-suspensive, meaning that the contracting authority is not precluded from signing the contract with the chosen tenderer. The decision of the court is merely declaratory and has no direct effect on the particular public procurement procedure, however, if the decision on the contract award is found to be invalid, liability for damages may arise, and contract nullification proceedings may be initiated.
Increased independence of the National Review Commission
The National Review Commission is a separate, independent, and autonomous national body that adopts decisions on the legality of public procurement procedures during all stages. Since its decisions are crucial for the management of public funds, the aim of the amendment is to increase the professionalism of its members by increasing their number, age limit and requirements on their experience in the field of public procurement. The procedure for their nomination is more rigorous and is similar to the procedure for the nomination of judges.
In practice, the Amended Act constitutes one of the steps in the reform of legislation governing public procurement procedures which will be followed by an amendment to the Public Procurement Act in the following year. It is unlikely that the amendments will bring any visible changes overnight, however they represent a welcome effort towards faster and more effective public procurement procedures that will become more tenderer-friendly over time.