Předseda ÚOHS k některým aspektům nejen IT veřejných zakázek

The Chairman of the Office for the Protection of Competition (ÚOHS) recently decided on an appeal filed by one of the participants in a public procurement procedure conducted by the Czech Road and Motorway Directorate for the installation and management of IT systems. In doing so, he expressed several legal opinions that may be relevant for the assessment of similar public procurements in the future.

Elements of a Framework Agreement

The Chairman of ÚOHS concluded that the mere possibility of continuously specifying the details of performance through requests of the contracting authority does not in itself constitute a framework agreement. The decisive factor is whether the supplier is obliged to provide the services based on the contract itself. Subsequent clarification of the scope and content of the services merely represents a specification of an existing obligation rather than the award of new public procurements. In the context of long-term IT projects, such a flexible model is considered legitimate, provided that the services and their pricing are defined in advance.

Transparency of Hourly Rates

According to the Chairman of ÚOHS, procurement based on hourly rates is not non-transparent merely because the specific scope and content of the services will be determined during contract performance. In his view, competition occurs at the level of the tendered unit prices, while the scope and content of the services remain subject to the contracting authority’s control and the contractual financial cap. The need for subsequent agreement on the specific scope and content of the services therefore does not, in itself, distort competition.

Long-Term Duration of Contractual Relationships

The Chairman of ÚOHS also commented on the duration of contractual relationships. He rejected the notion that a contract concluded for a period of 20 years automatically restricts competition. According to him, the length of the contractual relationship must be assessed in light of the legitimate needs of the contracting authority, particularly the need to ensure long-term operation, system development, continuity of know-how, and the efficiency of investments.

Termination Without Cause

Nor did the Chairman consider the contracting authority’s unilateral right to terminate the contract without cause to be problematic. He emphasized that the review of contractual terms is relevant only where such provisions could be discriminatory or restrict competition already at the procurement stage.

Requirements for Key Project Team Members

The Chairman of ÚOHS further concluded that, in the case of key project team members, there is no requirement for an absolute match between the activities a specialist will perform under the contract and the experience required to demonstrate its expertise. What matters is the existence of the professional skills and practical experience necessary for the proper performance of the subject matter of the public procurement. In the case under review, the Chairman of ÚOHS found it sufficient that specialists involved in the design of the IT system were capable, based on their experience, of defining system requirements and verifying the proposed solution, even if they were not the individuals who would actually program the system.

Authors:

Jan Turek

Jakub Marko

Tomáš Černý