On 1 January, amendments to the Public Procurement Law entered into force, banning companies from the participation in public procurements for three years for competition law infringements instead of the current one year. It also introduces a new exclusion criterion, according to which contracting authorities may exclude a company from participating in a procurement procedure after consulting the Competition Council (The CC) and obtaining its opinion on a possible collusion. However, given the delay in the adoption of the 2023 State Budget, the CC has not been allocated the funding and human resources necessary to carry out its statutory function.
On 1 January 2023, amendments to the Public Procurement Law entered into force, which exclude companies from participating in procurement for a period of three years instead of the current one year. At the same time, the amendments give the contracting authority the right to decide on the participation of the offending undertaking in procurement, notwithstanding the prohibition, if the undertaking has taken the necessary steps to “Restoration of credibility”. The amendments to the Public Procurement Law also provide for a new exclusion criterion according to which contracting authorities may exclude an undertaking from participation in a procurement. In particular, contracting authorities may exclude bidders from a procurement not only in cases where a decision of the CC on a prohibited agreement has been adopted, but also in cases where the contracting authority itself in a particular procurement finds indications of a prohibited agreement between bidders and at the same time has consulted the CC on this case, receiving the opinion of the authority on a possible prohibited agreement. In this case, if the contracting authority’s suspicions that the tenderers may be involved in a collusive practice are confirmed, the contracting authority may decide to exclude the tenderer from participation in the procurement in question.
From 1 January, contracting authorities are obliged to request the opinion of the CC within the statutory deadline of 10 working days. Given the number of procuring entities and the number of procurements they organise each year, as well as the resource intensity of the new additional function, which may include an objective and in-depth examination of the information provided by procuring entities and the preparation of a qualitative opinion within a short period of time, as well as the representation of the CC before the Procurement Monitoring Bureau and administrative courts in case of disputes, the CC is currently not allocated the necessary resources to ensure the implementation of the new additional function under the Public Procurement Law. This in turn jeopardizes the provision of support to contracting authorities in identifying prohibited agreements due to the limited resources of the CC.
Chairman of the CC Juris Gaiķis: “In order for our institution to be able to fully implement the function set out in the amendments to the Public Procurement Law, preventing the prohibited agreements in procurements, as well as preventing the wasteful use of public resources, we hope for the support of the Government and the Saeima that the 2023 State Budget will also find the necessary resources for the implementation of the functions promised at the time of the adoption of the amendments to the Law.”