Act No. 137 / 2006 Coll.

Public procurement law

Valid Effective from 01.07.2006
Contents
137
THE LAW
of 14 March 2006
on public procurement
Parliament has decided on this law of the Czech Republic:

ČÁST PRVNÍ

GENERAL PROVISIONS
§ 1
Subject matter
This law implements the relevant provisions of the European Union1) and provides for
(a) procurement procedures;
(b) design contest,
(c) supervision of compliance with this law;
(d) the management conditions and functions of the list of qualified suppliers and the system of certified suppliers.
§ 2
Public procurement authority
(1) For the purposes of this Act, a public, subsidised and sectoral contracting entity is considered to be the contracting entity of a contract (hereinafter referred to as the contracting entity).
(2) The contracting authority shall:
(a) the Czech Republic2),
(b) a state contribution organisation;
(c) a territorial body or a contribution organisation for which the function of the body is performed by a territorial body;
(d) another legal person where:
1. has been established or established to meet needs of public interest which are not of an industrial or commercial nature; and
2. is financed mainly by a State or other contracting authority, or is controlled by a State or another contracting authority, or a State or another contracting authority designates or elects more than half of the members of its statutory, administrative, supervisory or supervisory body.
(3) The contracting authority concerned shall be a legal or natural person who procures a contract paid from more than 50% of public funds or where the funds awarded from such sources exceed CZK 200 000 000; the funds are provided from public sources even if they are provided through another person.
(4) For the purposes of concluding a contract with a subcontractor, a contractor to whom a contract has been awarded by a contracting authority shall not be regarded as a subsidised contracting authority.
(5) The contracting authority concerned shall proceed with the award of a contract in accordance with the provisions of this Law applicable to the contracting authority; This shall be without prejudice to the provisions of paragraph 7. The contracting authority concerned shall not comply with the provisions of this Law in the case of the award of a contract in the field of defence or security.
(6) The sector contracting authority is a person carrying out any of the relevant activities referred to in Article 4 where:
(a) conduct this relevant activity under special or exclusive law; or
(b) the contracting authority may exercise, directly or indirectly, a dominant influence over that person; a dominant influence of the contracting authority where:
1. has a majority of voting rights (s) or by agreement with another person; or
2. appoint or elect more than half of the members in its statutory, administrative, supervisory or supervisory body.
(7) Where the contracting authority or the subsidised contracting entity carries out one or more of the relevant activities referred to in Article 4, the provisions of the law applicable to the sectoral contracting entity shall apply to it, provided that the contract is to be awarded in connection with the performance of the relevant activity. However, the contracting authority shall not act in accordance with the provisions applicable to the sectoral contracting authority where it carries out the relevant activity under Article 4 (1) (d) and (e).
(8) The sector contracting authority shall proceed with the award of a defence or security contract in accordance with the provisions of this Law applicable to the contracting authority; Paragraph 19 (1) is without prejudice to this.
(9) For the purposes of this Act, several contracting entities referred to in paragraphs 2, 3 or 6 shall also be considered as one contracting entity, provided that they pool or otherwise merge for the purposes of a joint procurement procedure (hereinafter referred to as the "contracting entity association '). In such a case, contracting authorities shall conclude a written contract before the start of the procurement procedure, which shall lay down the mutual rights and obligations relating to the procurement procedure and lay down the manner of conduct on behalf of the participants of the contracting entities' associations. Where a contracting authority or a subsidised contracting entity is a participant in an association of contracting entities, the provisions of this law shall apply to the association of contracting entities; This shall be without prejudice to the provisions of paragraph 7.
(10) Any association or other association of the contracting authority referred to in paragraphs 2, 3 or 6 with a natural or legal person other than the contracting authority for the purpose of the award of a contract shall also be considered as contracting entity. Paragraph 9 of the third sentence shall apply mutatis mutandis.
(11) Where a contract is awarded by an association of contracting entities and at least one participant in an association of contracting entities is a foreign person having its registered office in a Member State of the European Union, the participants may agree that the applicable law is the law of the Czech Republic or the law of the Member State of the European Union in which the participant of the association has its registered office.
§ 3
Central contracting entity
(1) The central contracting authority shall be the contracting authority which carries out centralised procurement:
(a) procures for another contracting authority supplies or services which are the subject of public contracts which are subsequently sold to other contracting authorities at a price not higher than that at which supplies or services were procured; or
(b) carry out procurement procedures and award contracts for supplies, services or works on behalf of other contracting entities.
Before commencing centralised procurement, contracting entities and central contracting entities shall be required to conclude a written contract adjusting their reciprocal rights and obligations in connection with centralised procurement. By concluding a written contract, the central contracting authority shall be authorised to carry out centralised procurement in relation to the contracting entities concerned.
(2) The central contracting authority shall carry out the centralised award referred to in paragraph 1 in accordance with the provisions of this Law applicable to the contracting authority. However, where they carry out centralised procurement exclusively for or on behalf of sectoral contracting entities, they shall act in accordance with the provisions of this law applicable to sectoral contracting entities, except where they are centralised procurement in the field of defence or security.
(3) In the course of the procedure referred to in paragraph 1, the central contracting authority shall be responsible for the infringement of the law, unless such infringement has been committed by acts or omissions of the contracting authority for which or on whose account the centralised award is made.
(4) Where a contract has been awarded in accordance with this law by a central contracting authority, the contract has been awarded in accordance with that law and in relation to the contracting authority for which the centralised award was made.
(5) A central procuring entity may also procure supplies or services for itself in the framework of centralised procurement referred to in paragraph 1.
§ 4
Relevant activity
(1) Relevant activities for the purposes of this Act are:
(a) in the gas sector 4)
1. production of gas for the purpose of providing a service to the public;
2. the provision or operation of a transmission or distribution system intended to provide a service to the public;
3. the provision or operation of the extractive pipeline; or
4. the provision or operation of an underground gas storage tank providing the operability of a transmission or distribution system intended to provide a service to the public;
(b) in the heating sector 4)
1. the production of heat energy for the purpose of providing a service to the public; or
2. the provision or operation of heating distribution equipment intended to provide heat energy to customers;
(c) in the electricity sector 4)
1. the production of electricity for the purpose of providing a service to the public; or
2. the provision or operation of a transmission or distribution system intended to provide a service to the public;
(d) in the water sector 5)
1. the provision of tap, serving public needs, for the purpose of operating such a tap under a special legislature5) in connection with the production or supply of drinking water;
2. the operation of a water pipeline serving public needs under special legislation5) in connection with the production or supply of drinking water; or
3. the supply of drinking water to the tap referred to in points 1 and 2;
(e) the activity of persons carrying out the relevant activity referred to in point (d) where such activity:
1. related to water management, irrigation or drainage projects, provided that the volume of water to be used for the supply of drinking water represents more than 20% of the total volume of water provided by those projects or irrigation or drainage facilities; or
2. it is related to sewage treatment for public use or waste water treatment;
(f) the activity related to the provision or operation of transport networks providing public service in the field of railway, tramway, trolleybus or cableway transports6) and the operation of public bus transports7) (the "transport network"); the transport network shall be considered as existing if the activity referred to in this point is provided under conditions laid down by the competent administrative authority, in particular those relating to the provision or operation of the transport network, transport capacity or frequency of the provision of such activity;
(g) provision-related activity
1. reserved postal services which are or may be reserved under European Unionlegislation (8); or
2. other postal services which cannot be reserved under European Unionlegislation (8);
postal services are services consisting of the lodging, sorting, routing and delivery of mail, the consignment being considered a postal consignment marked with an address, irrespective of its weight, and the contents of which may be, in addition to documents, in particular, books, catalogues, newspapers and magazines or other goods,
(h) the activity relating to the provision of services other than postal services referred to in point (g), where such services are provided by a person who also provides one of the postal services referred to in point (g), and where the provision of postal services referred to in point (g) is not excluded from the scope of this Act under Paragraph 20; they shall be regarded as other than postal services.
1. services directly related to postal services, i.e. services prior to or following delivery, in particular services of the administration of the postal office of the consignor or addressee,
2. services directly related to postal services and provided by fully electronic means, including secure transfer of coded documents by electronic means, address management services and registered e-mail transmission,
3. services relating to consignments not referred to in point (g), in particular unaddressed advertising consignments;
4. financial services listed in category 6 of Annex No 1 and in Paragraph 18 (2) (b), including postal cash orders and wire transfers;
5. philatelic services; or
6. logistics services consisting of services combining physical delivery or storage with other non-postal functions,
(i) an activity carried out in the use of a geographical area for the purpose of:
1. exploration, exploration or extraction of oil, gas, coal or other solid fuels; or
2. the provision and operation of aerodromes (9), sea or inland ports or other terminal facilities for air, sea or inland waterway carriers.
(2) If it is not a contracting authority, the activity is not considered relevant for the purposes of this Act.
(a) the supply of heat energy or gas produced, provided that:
1. supply to networks enabling the provision of services to the public;
2. their production is the result of an activity other than that referred to in paragraph 1;
3. the supply is aimed only at the economic use of the produced heat energy or gas; and
4. not more than 20% of the contracting authority's average turnover over the previous 3 years;
(b) the supply of electricity or drinking water produced where:
1. supply to networks enabling the provision of services to the public;
2. their production shall be carried out for the purpose of carrying out an activity other than that referred to in paragraph 1;
3. delivery depends solely on the contracting authority's own consumption; and
4. not more than 30% of the average total electricity or drinking water production by the contracting authority over the previous 3 years.
(3) For the purposes of this Act, the operation of public bus services referred to in paragraph 1 (f) shall also not be considered as relevant if other persons can provide such services throughout the territory of the State or in a defined area under the same conditions.
§ 5
Conflict of activities
(1) The co-operation of activities means that the subject matter of the contract awarded is linked to both the performance of the relevant activity and the performance of the other activity of the contracting authority.
(2) When the activities referred to in paragraph 1 coincide
(a) the contracting authority shall, in accordance with the provisions of this law applicable to the sectoral contracting authority, only if the subject matter of the contract is primarily linked to the relevant activity carried out by the contracting authority; otherwise, or where it is not objectively possible to determine whether the subject matter of the contract is primarily linked to the performance of the relevant activity, the contracting authority shall proceed in accordance with the provisions of this Law applicable to the contracting authority,
(b) the sectoral contracting authority shall not act under this law if the subject matter of the contract is primarily related to its activity other than the pursuit of the relevant activity; otherwise, or where it is not objectively possible to determine whether the subject matter of the contract is primarily related to the performance of another activity, the sectoral contracting authority shall proceed in accordance with the provisions of this law applicable to the sectoral contracting authority.
§ 6
Principles of the contracting authority's procedure
(1) The contracting authority is obliged to respect the principles of transparency, equal treatment and non-discrimination in the procedure under this law.
(2) The contracting authority may not restrict participation in procurement procedures to those suppliers who have their registered office or place of business in a Member State of the European Union and other States which have an international contract with the Czech Republic or the European Union guaranteeing access to the public contract awarded by suppliers from those States.
§ 7
Public procurement
(1) A contract is a contract concluded under a contract between the contracting authority and one or more suppliers, the object of which is the supply of supplies or services or the performance of works in a way that is punishable. The contract which the contracting authority is obliged to award under this law must be executed on the basis of a written contract.
(2) Public contracts are divided by subject matter into public supply contracts, public service contracts and public works contracts (hereinafter referred to as "types of public contracts").
(3) According to their estimated value, public contracts are divided into over-limit contracts, low-limit contracts and small-scale contracts.
§ 8
Public supply contract
(1) A public supply contract is a public contract for the acquisition of a case (hereinafter referred to as "goods"), in particular by the purchase, purchase, hire or hire of goods or the hire or hire of goods with the right to purchase (leasing).
(2) A public supply contract is also a public contract the object of which, in addition to the acquisition of goods referred to in paragraph 1, is also the supply of services or works consisting in the placing, assembly or putting into service of such goods, unless the construction of a building is concerned, provided that such activities are not the primary purpose of the contract but are necessary to fulfil the public supply contract.
§ 9
Public works contract
(1) A public works contract is a public contract which:
(a) the execution of works relating to one of the activities listed in Annex 3;
(b) the execution of the works referred to in (a) and related project or engineering activities; or
(c) construction (10), which is the result of construction or assembly work and, where appropriate, related project or engineering activities, and which is able as a whole to perform a separate economic or technical function.
(2) A public works contract is also a public contract the object of which, in addition to the performance referred to in paragraph 1, is also the supply of supplies or services necessary for the performance of the subject matter of the contract by the supplier.
(3) The works contract shall also be regarded as a contract for works procured using brokering or similar services provided by another person to the contracting authority.
§ 10
Public service contract
(1) A public service contract is a public contract which is not a public supply contract or a public works contract.
(2) A public service contract is also a public service contract which, in addition to the provision of services, also covers:
(a) supply pursuant to Article 8 where the expected value of the services provided is higher than the expected value of the supply provided; or
(b) the execution of the works referred to in Article 9, provided that such works are not the primary purpose of the contract but are necessary for the performance of the service contract.
(3) The services are divided into the categories set out in Annexes 1 and 2.
(4) Where a contract for the supply of services listed in both Annex 1 and Annex 2 is the subject of a contract, the higher estimated value of the services listed in that Annex shall be decisive for determining whether the contract is a service contract in accordance with Annex 1 or Annex 2.
§ 10a
Public procurement in the field of defence or security
(1) A contract in the field of defence or security is a contract which:
(a) supplies of military equipment, components, spare parts and parts;
(b) the supply of sensitive material, its components, spare parts and components;
(c) works, supplies or services directly related to the supplies referred to in (a) or (b) for all stages of their life cycle;
(d) works or services exclusively for military purposes; or
(e) sensitive works or services.
(2) The contracting authority shall, in accordance with the provisions of this Law applicable to the award of contracts in the field of defence or security, even if the subject matter of the contract falls within that field only partially, and at the same time there are objective reasons for the award of only one contract.
(3) The contracting authority shall not be obliged to comply with this Law where the subject matter of the contract falls only partially within the field of defence or security referred to in paragraph 1, and for the remainder one of the exceptions provided for in paragraphs 1, 2 and 3 of Paragraph 18 or paragraphs 2, 3 and 7 of Section 19, while there are objective reasons for the award of a single contract.
§ 11
Framework contract
(1) For the purposes of this Act, a framework contract means a written contract between the contracting authority and one or more tenderers concluded for a fixed period which regulates the conditions relating to individual contracts for the purchase of recurring supplies, services or works with a similar subject of performance awarded during the period of validity of the framework contract, in particular as regards price and quantity.
(2) Where this law applies the concept of a public contract, it shall also mean the framework contract referred to in paragraph 1, unless otherwise provided for by that law. The provisions of this Act relating to the award of public contracts shall apply mutatis mutandis to the award of framework contracts, unless otherwise provided for in this Act.
(3) For the purposes of this Act, a framework contract shall also mean a contract satisfying the conditions referred to in paragraph 1 concluded on the basis of a procurement procedure carried out in accordance with European Union law (1) in favour of a sectoral contracting authority established in the Czech Republic by its associated entity, which is a sectoral contracting authority in another Member State of the European Union.
§ 12
(1) Excessive procurement means a procurement whose estimated value under Paragraph 13, excluding value added tax, will reach at least the financial limit laid down by the implementing legislation for each category of contracting authority, zone and type of procurement, or category of supply or service, where applicable. This implementing legislation also establishes a list of goods procured by the Czech Republic - Ministry of Defence for which a specific financial limit applies and the amount of this limit.
(2) A sub-limit public contract shall mean a public contract, the estimated value of which shall be at least CZK 2 000 000 000 in the case of a public supply or service contract, excluding value added tax, or in the case of a public works contract, at least CZK 6 000 000 without value added tax and shall not reach the financial limit referred to in paragraph 1.
(3) Small-scale public contract means a public contract, the estimated value of which will not be achieved in the case of a supply or service contract of CZK 2 000 000 without value added tax or in the case of a public contract for works 6 000 000 CZK without value added tax.
§ 13
Estimated value of the contract
(1) For the purposes of this Act, the estimated value of the contract is the estimated amount of the cash obligation resulting from the performance of the contract which the contracting authority is obliged to determine for the purposes of the procedure in the procurement procedure prior to the start of the contract. In determining the estimated value, the applicable price is always the net of value added tax.
(2) The estimated value shall be determined by the contracting authority in accordance with the rules laid down in this Act and on the basis of data and information on contracts of the same or similar object of performance; where the contracting authority does not have such data available, it shall determine the estimated value on the basis of the data and information obtained by the market survey with the required performance, and, where appropriate, on the basis of data and information obtained by other appropriate means. In order to determine the estimated value, the date of dispatch of the contract notice or call for publication shall be the relevant date.
(3) The contracting authority may not divide the subject-matter of the contract in such a way as to reduce the expected value below the thresholds laid down in this Act.
(4) Where a contract is divided into lots, the sum of the estimated values of all parts of the contract shall be decisive for determining the estimated value.
(5) In the event that the contracting authority provides the participants in a design contest or participants in a competitive dialogue with remuneration, competitive price or other payment, the estimated value shall include the amount of such remuneration, competitive prices or other payments.
(6) Where the contracting authority has reserved an option under Paragraph 99 in the terms of the contract, the estimated value shall also include the estimated value of all public supply, service or works contracts required by the contracting authority in the use of the option; In such a case, the contracting authority shall at the same time determine separately the estimated value of the supply, service or works contract and the estimated value of the supplies, services or works in the use of the option right.
(7) In the case of framework contracts and a dynamic purchasing system, the expected value shall be the maximum estimated value of all contracts to be awarded over the duration of the framework contract or dynamic purchasing system.
(8) In determining the estimated value, the contracting authority shall add up the expected values of similar, related supplies or services it intends to acquire during the accounting year. This shall not apply to supplies or services the unit price of which is variable during the accounting year and the contracting entity shall re-procure such supplies or services according to its current needs; However, the contracting authority shall always comply with the principles laid down in Article 6 (1).
§ 14
Estimated value of the supply contract
(1) The estimated value of the supply contract shall be determined on the basis of:
(a) the estimated amount of the contracting authority's total cash obligation over the period of validity of the supply contract, if the contract is to be concluded for a specified period; or
(b) the estimated amount of the total financial commitment of the contracting authority for 48 months, if the contract is to be concluded for an indefinite period or for a period whose duration cannot be precisely defined.
(2) The contracting authority shall also include the expected residual price (12) in the forecast value of the supply contract established pursuant to paragraph 1.
(3) The basis for determining the estimated value of the supply contract, the object of which is recurrent or continuous supply, is:
(a) the actual price paid by the contracting authority for supplies of the same or similar species during the previous 12 months, adjusted for changes in the quantity or prices that can be expected during the next 12 months; or
(b) the sum of the estimated values of each supply to be acquired by the contracting authority during the following 12 months.
(4) The basis established in accordance with paragraph 3 shall be adjusted in accordance with the rules referred to in paragraphs 1 and 2 for the purposes of determining the estimated value of a contract subject to recurring or continuous supply.
§ 15
Estimated value of the service contract
(1) Paragraph 14 (1), (3) and (4) shall apply mutatis mutandis to determine the estimated value of the service contract.
(2) The basis for determining the estimated value of the service contract in the case of:
(a) insurance services are insurance premiums and any other remuneration related to such services;
(b) banking and financial services are fees, commissions, interest and any other remuneration associated with such services;
(c) project activities are fees and any other payments related to the processing of project documentation.
§ 16
Estimated value of the works contract
(1) The estimated value of the works contract shall be determined in accordance with the rules set out in Section 13. The estimated value of the works contract shall be included in the forecast value of the supplies and, in the case of the sectoral contracting authority, the estimated value of the services necessary for the performance of the works contract and provided by the contracting authority to suppliers.
(2) In the foreseeable value of a public works contract, the contracting authority may not include the estimated value of supplies or services where such supplies or services are not necessary to carry out the subject matter of a public works contract and their inclusion in the estimated value of a public works contract would mean that:
(a) they would not have to be awarded in a procurement procedure in accordance with this law; or
(b) they would have been awarded in accordance with the provisions relating to sub-limited public contracts, although, according to the estimated value, they are over-limited public supply or service contracts, or they would have been concluded in accordance with the provisions relating to small-scale public contracts, although, according to the estimated value, they are over-limited public supply or service contracts.
§ 16a
Significant procurement
An important contract shall mean a contract awarded by:
(a) the contracting authority referred to in Article 2 (2) (a) or (b), or another legal person referred to in Article 2 (2) (d), where the Czech Republic is in a position to be treated as such in accordance with Article 2 (2) (d) (2), the estimated value of the contract being at least CZK 300 000 000;
(b) the contracting authority referred to in Article 2 (2) (c) or any other legal person referred to in Article 2 (2) (d), if the contracting authority referred to in Article 2 (2) (c) is in a position as referred to in Article 2 (2) (d) (2), the estimated value of the contract being at least CZK 50 000 000.
§ 17
Definition of certain other terms
For the purposes of this Act:
(a) by a supplier, any natural or legal person who supplies goods, provides services or carries out works where he has his registered office, place of business or place of permanent residence in the Czech Republic, or a foreign supplier;
(b) a dynamic purchasing system fully electronic for the procurement of normal and generally available goods, services or works which is limited in time and open throughout its duration to all suppliers who fulfil the conditions for inclusion in a dynamic purchasing system and submit a preliminary offer;
(c) an electronic auction process for the evaluation of tenders whereby the contracting authority uses electronic instruments enabling the submission of new reduced tender prices and, where appropriate, new tender values, while allowing the actual order of tenders to be drawn up using automatic evaluation methods;
(d) the company's name, registered office, legal form, person's identification number (hereinafter referred to as the "identification number"), if assigned in respect of a legal person, and the company's name and surname, place of business or place of permanent residence, identification number, if assigned in respect of a natural person;
(e) the competence of the supplier to perform the contract;
(f) qualification documentation containing the detailed requirements of the contracting authority for demonstrating compliance with the supplier's qualification;
(g) Public procurement Bulletin of the Public Procurement Information System (hereinafter referred to as the Information System), which ensures the publication of public procurement information,

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Regulation Information

CitationAct No. 137 / 2006 Coll., on Public Procurement
Regulation Type-
Author-
CollectionCode of Laws
Date of Promulgation19.04.2006
Effective from01.07.2006
Effective until-
Status Valid
The regulation text is for informational purposes only.
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