Zasady odpovedneho zadavani verejnych zakazek spravni soud

Principles of responsible public procurement in an administrative court decision

In February 2022, the Department of Defence and Armed Forces (the "Contracting Authority") initiated a solicitation to enter into a framework agreement for "Alternative Toners, Refills, and Ribbons for Printers and Copiers + Related Parts" (the "Procurement"). In the solicitation, the Contracting Authority adopted two sets of measures in relation to responsible procurement. Firstly, there were provisions, in particular in the draft framework agreement, requiring suppliers to comply with laws and other rules arising mainly from environmental and labour law. Possible penalties would be a contractual penalty of a percentage of the purchase price and the possibility to terminate the contract. The second heading was the requirement to submit safety data sheets to inform the  Contracting Authority of the chemical properties of the substances used, the rules for handling these substances and, where appropriate, the environmental hazards posed by these substances. One of the suppliers ("the Complainant") objected to the way in which the terms of reference were laid down, which was rejected by the Contracting Authority by decision of 31 March 2022.

The Complainant responded by filing a petition for review of the Contracting Authority's actions with the Office for the Protection of Competition (the "OPC"). In it, the Complainant sought the Contracting Authority's compliance with the principles of socially and environmentally responsible contracting (the "principles of responsible contracting") in accordance with the provisions of Section 6(4) of the Act on Public Procurement (the "Act"). In the Complainant's view, the Contracting Authority has, first of all, failed to set the conditions for responsible procurement in an enforceable manner guaranteeing compliance with the principles of responsible procurement already during the procurement procedure and not only during the performance of the framework agreement by means of possible sanctions.

On 7 June 2022, the OPC decided to reject the Complainant's application. The OPC expressed the view that the Contracting Authority had not abandoned its efforts to comply with the principles of responsible procurement, as is evident from the fact that it had incorporated the relevant provisions in the contractual terms of the Procurement. Moreover, by drafting the framework agreement into the tender conditions, the Contracting Authority has expressed a clear interest in ensuring that the Supplier complies with the applicable regulations with an emphasis on environmental protection. The Complainant lodged a complaint against that decision, which was rejected by decision of the President of the OPC on 22 August 2022.

The Complainant reacted to the decision on the appeal by filing an action with the Regional Court in Brno. On 12 December 2023, the Court issued a judgment dismissing the action. According to the court, the provisions of Section 6(4) of the Act only imply an obligation to take due account of socially and environmentally responsible procurement aspects when awarding a public contract, if appropriate in view of the nature and purpose of the public contract. However, the provisions of the Act do not set out any specific measures that the contracting authority should take in relation to responsible procurement, nor any minimum level of protection that should be afforded to the protected values. It is therefore up to the contracting authority to select appropriate measures in the field of environmentally and socially responsible procurement, taking into account the nature and purpose of the public contract, and it must only provide proper justification for the measures chosen, or the absence thereof. At the same time, it cannot be inferred, merely by reference to the precautionary principle, that the law requires the contracting authority to take specific precautionary measures with a certain degree of effectiveness to protect the environment.

We are closely monitoring further developments in the field of public procurement for you. If you would like more detailed information, please contact the authors of this article or other members of EY Law or the EY team with whom you work.

Authors:

Jan Turek

Magdalena Hamáčková