On 13 November 2019, the Constitutional Court announced a major ruling in the area of public procurement, which will have a significant impact on the review of procurement procedures by the public. It is now possible again to file motions with the Office for the Protection of Competition regarding errors in public tenders without the necessity to pay the administrative charge of CZK 10,000.
The Public Procurement Act which has been effective since 1 October 2016, unlike the previous legal regulation, conditioned the right to file a motion to initiate proceedings due to an error in awarding a public contract with the payment of a non-refundable administrative charge. In addition, the Act did not allow an extension of the payment deadline or an exemption from the charge, nor even for administrative bodies or municipalities and regions. If the charge was not paid, the Office for the Protection of Competition did not address the motion at all. The public’s oversight of public procurement thus incurred a financial burden, since even a proposal of a plaintiff was conditioned by the payment of a monetary deposit.
Since the rule about the payment of the charge was included in the act only through an amendment during the discussion in the Chamber of Deputies, its purpose is not clarified in the explanatory memorandum. However, the obvious goal of this regulation was to prevent the Office for the Protection of Competition from being overloaded with baseless motions. In 2015, the number of motions in the area of public procurement received by the Office for the Protection of Competition was 1,014, in 2018 there were 254, and the charge was paid only in relation to 98 of them. A visible decrease in the number of investigated motions is therefore apparent after the introduction of the charge.
Constitutional Court: The charge was absurd
The introduction of the controversial charge, and an unusually high one at that, has been accompanied by discussions regarding its compliance with the Constitution since the beginning. Like other authorities, the Office for the Protection of Competition is required to initiate proceeding ex officio whenever it has reasonable suspicion that a breach of the law has occurred, irrespective of how the suspicion arose. The plenary session of the Constitutional Court pointed out the absurdity of the charge for filing a motion and ruled that the failure to pay it precluded the settlement of a matter which the Office for the Protection of Competition is obliged to address pursuant to a different provision. The Court additionally mentioned the principle of the citizen’s precedence over the state, whereby the state serves all citizens and not the other way around. In addition to the aforementioned internal contradiction in the Act, three judges of the plenary session pointed out in the dissenting opinion the reduction of the citizens’ right to petition, since the obligation to pay a charge does not fulfil the objective of protection against baseless motions because the Act does not allow for refunding or exemption from the charge.