Last Updated on 15 April 2020, 13:00 CET
Regardless of the pandemic, public procurement procedures are still being conducted. The standstill concerning court and administrative deadlines does not apply to public procurement procedures. The contracting authorities nevertheless have the possibility to postpone a public procurement procedure, but they are not obliged to do so.
The Public Procurement Act (»ZJN-3«) already provides for a specific type of procedure which enables a faster and easier procedure that might also be used during the COVID-19 epidemic – the negotiated procedure without prior publication. Even though its use is limited, one of the circumstances in which it can be used is when in cases of urgency, the contracting authority could not adhere to deadlines prescribed for an open, limited or negotiated procedure with a prior publication. The negotiated procedure without prior publication is a relatively quick and simplified procedure. The procurement agreement can be concluded on the same day as the award decision and the notice was published at the public procurement portal. During the procedure, the tenderer must only prove the fulfilment of conditions by a statement and the contracting authority is not compelled to verify it unless in doubt.
In light of the current situation, the Slovenian Government advises contracting authorities to request only such financial collateral that can be submitted electronically. Some contracting authorities may also be faced with changes of agreed prices for protective equipment or the inability by suppliers to deliver the ordered goods or services. It should be noted that changes in contractually agreed prices should be assessed from the perspective of the Obligations Code, in accordance with the legal construct of changed circumstances, as well as from the perspective of ZJN-3, which determines limited possibilities when the procurement agreement may be amended during its performance without a new procurement procedure.
The Mega Anti-Corona Law[1] temporarily raised the threshold for the applicability of ZJN-3 regarding the procurement of goods, services, projects, and construction works in the general area. The new threshold, which is applicable until 15 November 2020, is EUR 40,000 (excl. VAT) for goods, services, and projects, whereas for construction works the threshold is EUR 80,000 (excl. VAT). For procurement agreements already awarded or procedures initiated before the Mega Anti-Corona Law entered into force, the thresholds stipulated in the ZJN-3 still apply. Applicability of ZJN-3 provisions on the methodology for calculating the estimated value remains unchanged even after the Mega Anti-Corona Law.
Pursuant to the Mega Anti-Corona Law, provisions on contractual penalties stipulated in procurement agreements for delays deriving from already awarded procurement agreements do not apply during the epidemic. Similarly, the contractually agreed deadlines are prolonged for the period of the epidemic’s duration. These provisions of the Mega Anti-Corona Law do not apply to protective equipment necessary to combat the epidemic.
[1] The Act on the intervention measures to stem and mitigate the consequences of the SARS-CoV-2 (COVID-19) communicable disease epidemic for citizens and the economy, adopted on the 2 April 2020 and effective as of 11 April 2020.
