Dodavatelé ze třetích zemí mají právo bránit se v zadávacím řízení

The Office for the Protection of Competition addressed a dispute in which a Turkish trolleybus manufacturer challenged the procurement conditions set by the Prague Public Transit Company. According to the decision of the Chairman of the Office for the Protection of Competition dated August 25, 2025, the possibility of challenging procurement conditions must be understood broadly. It is not sufficient to merely state that a supplier from a third country cannot submit a bid. The key issue is whether the supplier is at least potentially capable of participating in the fulfillment of the contract. This means that even if the supplier may ultimately be excluded from the process, they cannot be denied the right to raise objections against the procurement conditions in advance.

An important question addressed by the decision is whether a supplier from a third country can be deemed entirely obviously unqualified. The Chairman of the Office unequivocally rejected a narrow interpretation of active legitimacy that would result in the right to challenge being denied based on the assumption of later exclusion. Such an approach would fundamentally limit the rights of potential suppliers and could lead to insufficient scrutiny of the procurement conditions.

According to this decision, active legitimacy belongs to anyone who is at least potentially capable of contributing to the fulfillment of the public contract—whether as a supplier or subcontractor. The purpose of the institute of active legitimacy is not to thoroughly examine whether the applicant can actually fulfill the contract, but merely to verify that the entity is not entirely obviously unqualified—such as due to the absence of a business license.

This development in decision-making practice may have broader implications for the area of public procurement in the Czech Republic. Suppliers from third countries are gaining broader grounds to protect their interests. The circle of entities that can challenge the transparency and legality of procurement conditions is expanding, which is particularly significant for suppliers from non-EU countries. Thus, objections can also be submitted by entities that are not directly qualified to submit a bid but can participate in the fulfillment as subcontractors.

The decision confirms the Office's tendency towards a broader and more inclusive interpretation of rights and obligations in the area of public procurement. Protecting the rights of all potential participants in the procurement process is crucial for ensuring fair competition and the effective use of public funds.

Authors:

Jan Turek

Jonáš Kozák

Matěj Šimpach