Act No. 166 / 2023 Coll.
Act amending Act No. 134 / 2016 Coll., on Public Procurement, as amended
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Law
Effective from 16.07.2023
Text versions:
16.07.2023
16.06.2023
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166
THE LAW
of 30 May 2023
amending Act No. 134 / 2016 Coll., on Public Procurement, as amended
Parliament has decided on this law of the Czech Republic:
Act No. 134 / 2016 Coll., on Public Procurement, as amended by Act No. 368 / 2016 Coll., Act No. 147 / 2017 Coll., Act No. 183 / 2017 Coll., Act No. 287 / 2018 Coll., Act No. 277 / 2019 Coll., the Constitutional Court's finding, published under Act No. 309 / 2019 Coll., Act No. 527 / 2020 Coll., Act No. 543 / 2020 Coll., Act No. 174 / 2021 Coll., Act No. 417 / 2021 Coll. and Act No. 240 / 2022 Coll., is amended as follows:
1. In Paragraph 2 (1), the first sentence is inserted: "For the purposes of this Act, the entry between the organizational components of the State under the Act on the property of the Czech Republic and its representation in legal relations shall also be considered as a contract if it is subject to the provision of supplies, services or works in kind."
2. in Article 4 (1) (a), the words "separate contracting entities" shall be replaced by the words "operational units with functional autonomy in the award of contracts pursuant to Article 17 (2)."
3. In Article 4 (2), at the end of the text in point (a), the words "except where a public contract which is not an excessive public contract for works or the associated above-limit public service contract is performed outside the territory of the European Union 'shall be added.
4. In Section 4, paragraph 6 is added, including footnotes 54 and 55:
"(6) The contracting authority referred to in paragraph 2 shall not be considered to be the contracting entity on the basis of a pre-determined rate, or of supplies or services in the field of the common agricultural policy in the fruit and vegetables sector, beekeeping, wine, other sector55. This does not apply if there is an excessive public works contract or an excessive public service contract relating to such works, for which the contracting authority provides more than 50% of the funds.
54) Act No. 252 / 1997 Coll., on Agriculture, as amended. Act No. 256 / 2000 Coll., on the State Agricultural Intervention Fund and amending certain other laws (Act on the State Agricultural Intervention Fund), as amended.
(55) Article 42 (a), (b), (c) and (f) of Regulation (EU) No 2021 / 2115 of the European Parliament and of the Council of 2 December 2021 laying down support rules for strategic plans to be drawn up by Member States under the common agricultural policy (CAP strategic plans) and financed by the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) No 1305 / 2013 and (EU) No 1307 / 2013, as amended. Article 22 et seq. of Regulation (EU) No 1308 / 2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922 / 72, (EEC) No 234 / 79, (EC) No 1037 / 2001 and (EC) No 1234 / 2007, as amended. ';
5. In the first sentence of Section 5, the words "for the purposes of this Act 'shall be inserted after the words" for the purposes of this Act'.
6. In Paragraph 6 (4), "possible 'is replaced by" appropriate'.
7. In Section 8 (2) of the introductory part of the provision, the words "with a contracting entity having its registered office in another Member State 'are replaced by the words" with a person who is a contracting entity under the law of another Member State'.
8. In Article 9, the following paragraph 3 is inserted after paragraph 2:
"(3) The publication obligation provided for in this Act shall be fulfilled if it is fulfilled by a central contracting authority in a centralised procurement procedure. ';
Paragraphs 3 to 7 shall be renumbered paragraphs 4 to 8.
9. Paragraph 9 (4) reads as follows:
"(4) The heading of the contracting entities for which centralised procurement is carried out shall be defined in the procurement documents, either by a list of them or by other means, enabling tenderers to identify them; This does not apply to procurement procedures where:
(a) a dynamic purchasing system is established; or
(b) a maximum contract performance price below the limit laid down in Article 25 shall be set in the contract documents. "
10. in Article 11 (1), the words "irrespective of who is the beneficiary of the contract 'shall be added at the end of the text in point (c).
11. in Article 11, the following paragraph 7 is added:
"(7) The organisational component of the State shall be regarded as a legal person for the purposes of vertical cooperation. ';
12. in Article 12 (c), the word "open" shall be inserted after the words "perform on."
13. In the second sentence of Article 13 (1), the words "possible to determine this turnover 'are replaced by the words" possible to proceed'; the words "contracting authority 'and the words" activities' are replaced by "activities'.
14. In Paragraph 14, the following sentence is added at the end of paragraph 1: "For the purposes of the first sentence, the acquisition of a security or other investment instrument (12), a business establishment, its separate organisational component or a holding in a commercial corporation shall not be regarded as acquisition of the item. '
15. in the first sentence of Article 16 (1), the words "Before the start of a procurement procedure or before the award of a contract under the derogation provided for in Article 30, the contracting authority" shall be replaced by "The contracting authority shall determine."
16. in Article 16 (6), the words "entered in the procurement procedure" shall be inserted after the words "contracts."
17. At the end of paragraph 6, the sentence "If a contract was not awarded in a procurement procedure, the price or particulars relevant for its determination in the contract shall be used to determine the estimated value. '
18.Paragraph 19 (3) reads as follows:
"(3) Contracts referred to in paragraph 1 shall not be regarded as contracts:
(a) for which the unit price of their object is variable at the time referred to in paragraph 1 (a);
(b) by which the contracting authority repeatedly procures supplies or services according to its current needs; and
(c) the estimated value determined in accordance with the procedure referred to in paragraphs 1 and 2 is below the limit laid down in paragraph 25. ';
19. in Paragraph 28 (1) (b), the words "the invitations listed in Annex 6 to this Act" shall be replaced by the words "calls for tenders in a simplified subrestricted procedure."
20. In Paragraph 28 (1), the words "or calls for participation 'shall be added at the end of the text in point (d).
21. In Paragraph 28 (1), the words "or invitations to tender" shall be added at the end of the text in point (e).
22. in Paragraph 28 (1), the words "or invitations to tender" shall be added at the end of the text in point (f).
23. in Paragraph 28 (2):
"(2) Applications for participation, preliminary tenders or tenders which have not been received by the contracting authority within the time limit or in the manner laid down in the procurement documents or in the invitation referred to in Annex 6 to this Law shall not be taken into account. ';
24. in Paragraph 29 (c), the word 'established' is replaced by 'established';
25. in Paragraph 29 (i), the words "for services" shall be added at the end of the introductory part of the provisions.
26. in Article 29 (i) (2), "the supply of programmes" is replaced by "the provision of programmes to users";
27. in Paragraph 29 (l) (1), "investment services12)" is replaced by "financial services."
28. in Paragraph 29 (s), the words "including directly related services or works" shall be inserted after the word "him."
29. In Paragraph 29, the current text becomes paragraph 1 and the following paragraph 2 is added:
"(2) The contracting authority carrying out the relevant activity referred to in Section 153 (1) (h) (1) shall not be obliged to award a contract awarded for the purpose of providing:
(a) e-mail services carried out exclusively by electronic means, in particular secure transfer of encrypted documents by electronic means, address management services or transmission of recommended e-mail;
(b) the services listed in Annex 2 to this Act;
(c) philatelic services; or
(d) logistical services connecting physical delivery or storage with other non-postal activities referred to in Article 153 (1) (h) (2). ';
30. Paragraph 30 (j) reads:
"(j) awarded to the armed forces of the Czech Republic for the manufacture, purchase or repair of products, their components and spare parts, which, due to their characteristic technical and structural characteristics, are considered to be designed or adapted for use in such components or are used in a mass manner to ensure the defence and security of the State;"
31. at the end of point (k), the word "or" shall be deleted.
32. in Paragraph 30, at the end of point (l), the dot is replaced by a comma and the following points (m) to (p) are added:
"(m) commissioned by the Financial Analysis Office to ensure the fight against the legalisation of the proceeds of crime and terrorist financing or to ensure the implementation of international sanctions in order to maintain international peace and security, the protection of fundamental human rights and the fight against terrorism;
n) commissioned by the National Office for Cyber and Information Security to ensure the cyber security of the Czech Republic,
(o) awarded by the contracting authority which is a group to a subsidiary association; or
(p) awarded by the beneficiary of the aid from the contracting authority for supplies or services related to supporting the work of children and youth. ';
33. At the end of § 31, the words "paragraphs 1 to 3 'are added.
34. in Article 32 (4) (a), the words "paragraph 1" shall be inserted after the words "Paragraph 29."
35. in Paragraph 32 (4), the word "or" shall be deleted at the end of point (a).
36. In Paragraph 32 (4), at the end of point (b), the dot is replaced by "or 'and the following point (c) is added:
"(c) part of the contract shall not be obliged to be awarded by the contracting authority in the procurement procedure and that part shall constitute the main object of the mixed contract in question.";
37.In Paragraph 33, "1" is replaced by "3."
38. In Paragraph 36 (2), the words "in the invitation referred to in Annex 6 to this Law or 'shall be inserted after the words" or'.
39. In the first sentence of Paragraph 36 (4), the words "or the invitations listed in Annex 6 to this Act 'shall be inserted after the word" documentation'.
40. In the second sentence of Article 36 (4), the words "or the invitation referred to in Annex 6 to this Act 'shall be inserted after the words" or the invitation referred to in Annex 6 to this Act'.
41.Paragraph 39 (5) reads as follows:
"(5) In the course of the procurement procedure, the contracting authority shall base itself on the data, documents, samples or models provided by the tenderer. The contracting authority may verify the reliability of the data, documents, samples or models provided. A procuring entity may also procure data, documents, samples or models on its own, except for data, documents, samples or models to be evaluated according to the evaluation criteria. Samples may be tested by the contracting authority and based on the results of such tests. ';
42. In the second sentence of Paragraph 39 (6), the words "or in the invitation listed in Annex 6 to this Act 'shall be inserted after the words" documentation'.
43. Paragraph 40, including the title:
Time limit
(1) The contracting authority may set a time limit within which the tenderers may not withdraw from the procurement procedure. The start of the tendering period shall be the end of the deadline for the submission of tenders. The time limit for the award must be set in proportion to the type of procurement procedure and the subject matter of the contract.
(2) The time limit shall be extended by:
(a) in which the contracting authority may not conclude a contract under Paragraph 246, under a decision of the Authority (hereinafter referred to as "the Authority") or under an interim measure imposed; or
(b) to which the contracting authority has agreed with the parties to the procurement procedure.
(3) The contracting authority shall, within 5 working days of receipt of the written request from the tenderer, send information on the time of the prohibition of conclusion of the contract to all tenderers or publish on the profile of the contracting authority. By providing information, the request shall be executed and any changes to the content of the information after the information has been provided shall no longer be provided on the basis of that request.
(4) Where the contracting authority has not sent a notice of selection of the supplier within the procurement period, the procurement procedure shall be terminated within 3 months of the end of the procurement period. Where a decision on the selection of a supplier sent within the time limit is subsequently repealed by the contracting authority by a remedy measure pursuant to Article 49 (1) or Article 245 (1), it shall be viewed for the purposes of the first sentence as if it had not been sent.
(5) Article 53 (8) and Article 128 (1) and (2) shall apply mutatis mutandis when the procurement procedure referred to in paragraph 4 is completed.
(6) In the event of termination of the procurement procedure referred to in paragraph 4, the contracting authority shall reimburse the tenderer of the procurement procedure on the basis of his written request for the cost effectively incurred for his participation in the procurement procedure. The right to reimbursement of costs effectively incurred shall cease if it has not been exercised by the contracting authority within a period of 6 months of the publication of the notice referred to in Articles 53 (8), 128 (2) or 129a (6). ';
44. in Paragraph 41 (4), the word "or" shall be added at the end of point (a).
45. in Paragraph 41 (4) (b):
"(b) the submission of a document by a bank or insurance undertaking proving the obligation of the bank or insurance undertaking to pay a security to the contracting authority on the basis of its notification of compliance with the conditions laid down in paragraph 7, if it is a bank guarantee or guarantee insurance.";
46. in Paragraph 41 (4), point (c) is deleted;
47. In Paragraph 41, the sentence "The contracting authority may require the documents referred to in paragraph 4 (b) to be presented in the original or an officially certified copy in the specifications may be added at the end of paragraph 5. '
48. In Paragraph 41 (6) of the Introductory Part of the provision, the words "the original of the guarantee document or the written declaration of the insurer 'are replaced by the words" or send the supplier the particulars or documents necessary to release the security'.
49. in Paragraph 41 (6) (a), the word "or" shall be deleted;
50. In Paragraph 41, at the end of paragraph 6, the dot is replaced by "or 'and the following point (c) is added:
"(c) after completion of the procurement procedure.";
51.Paragraph 41 (7) shall be deleted;
Paragraph 8 shall become paragraph 7.
52. In Paragraph 41 (7), "7 'is replaced by" 8';
53. In the second sentence of Paragraph 45 (1), the word "officially 'shall be inserted after the word" or'.
54. In the first sentence of Paragraph 45 (3), the part of the sentence after the semicolon, including the semicolon, is deleted.
55. In Paragraph 45 (3), the sentence "A document drawn up in a language other than that designated by the contracting authority for the submission of an application for participation, a preliminary tender or a tender shall be inserted after the first sentence."
56. In the third sentence of Paragraph 45 (3), the words "to the Czech language 'are deleted.
57. In the fourth sentence of Paragraph 45 (3), the word "v 'is replaced by the words" in Czech or' and the words "at the end of the fourth sentence 'are added; the contracting authority may waive the obligation to submit a translation for other documents.
58. In the last sentence of Paragraph 45 (3), the word "written 'shall be inserted after the word" replaced'.
59. In Paragraph 47 (1) (a), the text "§ 129 (4)" is replaced by "§ 129a (3)."
60. Paragraph 48 (3) reads as follows:
"(3) The contracting authority may exclude a tenderer who:
(a) has not demonstrated the provision of a security; or
(b) has not ensured the provision of a security throughout the duration of the tendering period; the second sentence of Article 46 (2) shall not apply to the assessment of the facts relevant to the lodging of the security. ';
61. in Article 48 (4), the words "at the contracting authority's written request" shall be inserted after the words "were not."
62. In Paragraph 48 (5) (a), the words "subject matter" are replaced by "subject matter."
63.In Paragraph 48 (5) (c), the word "written" shall be inserted after the word "on."
64.Paragraph 48 (6) reads as follows:
"(6) The contracting authority may also exclude a tenderer for ineligibility if, on the basis of credible information, it obtains a reasonable suspicion that the tenderer for the procurement procedure
(a) concluded a prohibited agreement with other persons under the Law on the Protection of Competition in connection with a public contract awarded; or
(b) the parts of the tenders to be evaluated in accordance with the evaluation criteria have been prepared by the tenderer in agreement with another party to the same procurement procedure with whom the connected party is under the Income Tax Act, and the contracting authority has not explained, on a written invitation by the contracting authority, that such a consensus did not occur in the preparation of the tender; a written invitation by the contracting authority shall be deemed to be a request under Paragraph 46. ';
footnote 22 is deleted.
65. In Paragraph 48 (8), the words "3 (b) or paragraph 'shall be inserted after the words" the reasons referred to in the paragraph'.
66. Paragraph 50, including the title, reads:
Notification of supplier selection
The contracting authority shall send a selection notice to all tenderers indicating the identification details of the selected supplier and the justification for the selection; This shall not apply in the case of a procurement procedure in which there is only one participant. ';
67. in Paragraph 51 (1), the words "by the expiry of the period laid down in Article 40 (4)" shall be inserted after the word "system."
68. In Paragraph 53 (4), the first sentence is replaced by the following: "The contracting authority must require proof of basic competence under Section 74. Unless otherwise specified by the contracting authority in the procurement documents, the supplier shall demonstrate compliance with the basic eligibility by a declaration of honour. Paragraphs 81 to 85, 86 (3), 87 and 88 shall apply mutatis mutandis to the simplified procurement procedure. '
69. In the fifth sentence of Paragraph 53 (4), part of the sentence after the semicolon, including the semicolon, is deleted.
70. In the sixth sentence of Paragraph 53 (4), the word "written 'shall be inserted after the word" replace'.
71. in Article 53 (4), the sentence of the eighth is deleted;
72. In the eighth sentence of Paragraph 53 (4), the words "pursuant to Paragraph 111 or the reduction in the number of advance offers pursuant to Paragraph 112 'shall be deleted.
73.In Paragraph 57 (1), the words "or the terms of reference shall require the submission of samples or models which cannot be submitted using electronic communication within the time limit for the submission of tenders; This shall not apply in the cases referred to in paragraph 2 '.
74. In Paragraph 57 (2) (b), the words "which the contracting authority could neither foresee nor cause," shall be deleted.
75. In the first sentence of Paragraph 58 (3), the words "proceedings, exclusions' shall be replaced by the words" proceedings and exclusions' and the words "unexcluded tenderers' shall be deleted.
76. In Paragraph 58 (3), the sentence "Unexcluded tenderers shall be inserted after the first sentence" by sending a written invitation to tender to all at the same time. "
77. In Paragraph 58, the sentence "The offer submitted in contravention of the first and second sentences shall not be taken into account at the end of paragraph 4. '
78. In Paragraph 58 (5), the words "all at the same time 'shall be added at the end of the second sentence.
79. In Article 59 (2), at the end of the text of point (a), the words "or the terms of reference shall require the submission of samples or models which cannot be submitted using electronic communication within the time limit for the submission of tenders; This shall not apply in the cases referred to in paragraphs 3 to 5. ';
80. In Article 59 (5), the words "or 2 'shall be inserted after the words" the procedure', the words "the tenders' shall be inserted after the words" the tenders' and the words "the invitation to participate or the invitation to tender shall be added at the end of the text of the paragraph 'shall be added.
81. In Paragraph 61 (5), the third sentence is replaced by the sentence "He shall send a call for tenders to the non-excluded tenderers at the same time."
82. In Paragraph 61, the following paragraph 7 is inserted after paragraph 6:
"(7) A preliminary offer lodged in breach of paragraph 6 shall not be taken into account."
Paragraphs 7 to 11 shall be renumbered paragraphs 8 to 12.
83.In Paragraph 61 (9), the word 'until' is replaced by ', § 109 (1) and (2) and §';
84. In Paragraph 61 (11), at the end of the first sentence, the words "and except for the rules for the evaluation of tenders under § 115 'shall be added.
85. in the last sentence of Paragraph 61 (11), the words "or supplemented" shall be inserted after the words "amended."
86. In Paragraph 63 (1) (b), the word "did not meet" shall be replaced by "cannot satisfy them without substantial changes."
87.In Paragraph 63 (3) (a), the word 'unique' is deleted.
88. In Paragraph 63 (4), the word "procedure 'is replaced by" reasonable solution'.
89. In Paragraph 66 (e), the words "as referred to in (c)" shall be inserted after the word "value."
90. In the second sentence of Paragraph 67 (2), the words "or supplement 'shall be inserted after the words" amend'.
91. in the last sentence of Article 67 (2), the words "or supplemented" shall be inserted after the words "amended."
92. In Paragraph 67, the following paragraph 3 is added:
"(3) In the case of negotiated procedures without publication on supplies purchased on a commodity exchange pursuant to Article 64 (c), Sections 42 (2), 50, 122 (1) to 4, 7 and 8, 123 and 217 (2) (c) and (d) shall not apply; the contracting entity does not have to comply with § 48 (9), § 73, 86 or § 122 (5) and (6) if the commodity exchange is acquired before the opening of the stock exchange
(a) information on the book-entry of shares or an affidavit of owners of shares within the scope of Paragraph 48 (9), if it is a public limited liability company or in the form of a similar public limited liability company;
(b) the particulars or evidence of the qualifications of the tenderers to the extent provided for in Sections 73 and 86; and
(c) particulars or documents of the beneficial owner to the extent provided for in Article 122 (5), if he is a Czech legal person, or to the extent provided for in Article 122 (6), if he is a foreign legal person. "
93.In Article 68 (3), the second sentence is deleted.
94. In Paragraph 69 (1), the words "(hereinafter referred to as the" solution ") 'are deleted.
95.In Article 69 (6), the first sentence is replaced by the words "The contracting authority shall immediately inform the tenderers of the termination of the competitive dialogue. It shall send a written invitation to tender for the solutions found to be available to the tenderers at the same time. ';
96.In Paragraph 72 (2), the second sentence is deleted.
97. In Paragraph 72 (4), the third sentence shall be replaced by the sentence "The non-excluded tenderers shall send a written invitation to tender, all at the same time."
98. Paragraph 72 (6) is deleted.
Paragraphs 7 and 8 shall be renumbered paragraphs 6 and 7.
99. In the last sentence of Paragraph 72 (6), the words "or supplemented 'shall be inserted after the words" amended'.
100. In Paragraph 83 (1) of the Introductory Part of the provision, the words "to prove a certain part of an economic qualification, technical qualification or professional competence 'are replaced by the words" to prove an economic qualification, technical qualification or professional competence' and the words "required by the contracting authority 'are replaced by the words" to prove it'.
101. In Paragraph 83 (1) (d), the words "written commitment of another person 'are replaced by the words" contract or other person signed with a certificate of its existence, containing an undertaking of another person' and the words "within 'are replaced by the words" at'.
102. In Paragraph 83, the following paragraph 2 is inserted after paragraph 1:
"(2) Where a supplier demonstrates a qualification through another person and provides the documents referred to in Article 79 (2) (a), (b) or (d) relating to such a person, the contract or certificate of its existence referred to in paragraph 1 (d) shall give rise to an undertaking that another person will carry out the works or services to which the qualification criterion is established. ';
Paragraphs 2 and 3 shall become paragraphs 3 and 4.
103. Paragraph 83 (3) reads as follows:
"(3) The requirement referred to in paragraph 1 (d) shall be deemed to be met if the content of the contract or the certificate of its existence referred to in paragraph 1 (d) results in an undertaking by another person to perform the contract jointly and severally with the supplier; This shall not apply where the contract or the certificate of its existence referred to in paragraph 1 (d) must meet the requirements of paragraph 2. ';
104. In Article 83 (4), the words "pursuant to Article 78 'are deleted.
105. In Paragraph 83, the following paragraph 5 is added:
"(5) The qualification of another person through which the qualification is demonstrated shall be subject to the rules laid down in this Act or to the specifications for the qualification of the supplier for which the qualification is proved. ';
106. In the first sentence of Paragraph 85 (2), the words "or with which the contracting authority proves the reasons for its incompetence under Paragraph 48 (5) 'shall be replaced by the words" or in the case of its incompetence; the reasons for ineligibility shall be assessed mutatis mutandis in accordance with Article 48 (5) or (6).';
107. In Section 86, the words "in the application for participation, preliminary tender or tender 'are added.
108. In the first sentence of Paragraph 86 (2), the word "written 'shall be inserted after the word" documents'.
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Regulation Information
| Citation | Act No. 166 / 2023 Coll., amending Act No. 134 / 2016 Coll., on Public Procurement, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.06.2023 |
|---|---|
| Effective from | 16.07.2023 |
| Effective until | - |
| Status | Valid |
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