Czech Republic: Czech Anti-Trust Office takes position regarding repeated invitations of the same circle of bidders
On 12 September 2014, the chairman of the Office for the Protection of Competition (ÚOHS) in his capacity as the appellate body issued a resolution (ref. R406/2013), in which he upheld the previous decision by the first instance (i.e., the ÚOHS – ref. S307/2013), thus highlighting the fact that neither taking tender procedures fully online nor complete and timely tender announcements and disclosure of the tender documentation can legitimize a breach of Sec. 38 (3) (previously para. (4)) of the Public Procurement Act, according to which contract awarding authorities who run a simplified below-threshold procedure must not repeatedly invite the same circle of potential bidders to submit a bid. It is true that the above-cited provision allows such repeated invitations of the same circle of bidders in legitimate cases (e.g. if the specific subject matter of the to-be-awarded public contract so requires), but unless there is good reason for such an approach, repeated invitations of the same circle of bidders in simplified below-threshold procedures are a breach of the Public Procurement Act which, according to the ÚOHS chairman, is apt to have impact on the choice of the most favorable bid within the meaning of Sec. 120 (1) (a) of the Public Procurement Act. This is because the thus invited bidders enjoy preferential treatment – their advantage being that they always reliably learn of the fact that a tender has been organized, and receive the tender documentation without having to do so much as to lift a finger. Other prospective suppliers, by contrast, won’t find out about the contract awarding authority’s published invitations to participate in the simplified below-threshold procedure unless they actively monitor the contract awarding authority’s actions, which must be considered not only a breach of Sec. 38 (3) of the Public Procurement Act, but also a breach of the transparency principle and of the ban on discrimination within the meaning of Sec. 6 of the Public Procurement Act.