INNOVATIVE AND RESPONSIBLE PUBLIC PROCUREMENT AS NEW LEGAL PRINCIPLES
An amendment that fundamentally overhauls Act No. 134/2016 Coll., on Public Procurement (the Public Procurement Act, the “PPA”) will come into effect on 1 January 2021. On 1 December 2020, the Chamber of Deputies passed a bill amending certain acts in connection with the adoption of the Act on Waste and the Act on End-of-Life Products, and also approved a legislative rider – an amendment – to the PPA.
The amendment expands the current public procurement principles regulated in Section 6 of the PPA,
which now obliges all contracting authorities to comply with the principles of socially and environmentally responsible procurement and innovation when setting up tendering criteria, evaluating tenders or selecting a supplier – regardless of the public procurement regime – including small-scale contracts. From 1 January 2021, contracting authorities are required to take into account the social and environmental aspects associated with a public procurement, or its impact on the implementation of new or significantly improved products, services and processes, and to duly justify their actions. The principles have been incorporated into the bill with reference to EU legislation.
As the amendment does not contain any transitional provisions, contracting authorities will have to quickly reflect the new changes in their procurement procedures, whether ongoing or newly launched, from the beginning of 2021. This also means they will need to incorporate responsible procurement and innovation strategies into their internal regulations. It should be noted that employing a responsible approach to public procurement is nothing new for some contracting authorities. A wider range of environmental and social factors have already been taken into account in tender announcements under the Resolution of the Government of the Czech Republic No. 531, dated 24 July 2017, on the Rules on Applying Responsible Public Procurement and Purchases Made by the Public Administration and Local Authorities. Under the amendment, however, this will be mandatory for all contracting authorities and all procurement procedures.
Given that the wording of the amendment has not been subject to a wider discussion, the question is whether the new approach will bring contracting authorities more complications than benefits in the supplier selection process. The managing authority in charge of the PPA, the Ministry for Regional Development, has already announced that it will issue its opinion and methodology for implementing the new legislation.