PUBLIC PROCUREMENT AND CALLS FOR TENDERS

In November 2015, the new Public Procurement Act (ZJN-3) was adopted by the National Assembly and published in the Official Gazette of the Republic of Slovenia No. 91/2015. It entered into force on 1 April 2016.

With ZJN-3, the new EU public procurement Directive 2014/24/EU and Directive 2014/25/EU were transposed into the Slovenian legislative system, which was an important novelty of ZJN-3. Namely, ZJN-3 simultaneously and jointly introduced both directives into the Slovenian legal system. This significantly changed the previous legislative practice where the directives were implemented through separate laws, i.e. in Public Procurement Act (ZJN) and Public Procurement in Water Management, Energy, Transport and Postal Services Area Act (ZJNVETPS).

In comparison with the previous ZJN-2, ZJN-3 puts forward some key changes:

• General, infrastructural and defence aspects of public procurement are joined in a single act
• Promoting greater flexibility to contracting authorities
• Enabling the contracting authorities to implement negotiation procedures
• Simplifying the competitive dialogue procedure
• Introducing the “Innovation Partnership” procedure
• Reducing stress in the application stage: tenderers can submit their own written statement confirming that they meet the conditions required, ESPD form.
• Enabling the contracting authorities to sort tenders according to the given criteria first, and then inspect the completeness of the most economically advantageous tender, or vice versa
• Contracting authorities may implement the criteria of appropriately experienced personnel where it could significantly affect the outcome of the public procurement
• Promoting joint cross-border procurement Introducing compulsory e-procurement
• Abolishing the list of B services and replacing it by a List of social and other special services
• Modifying certain limit values
• Reducing time limits in open procedures
• Providing broader and stricter conditions for tenderer exclusion
• Introducing the possibility of eliminating errors in cases of VAT rate error
• Modifying the rules concerning the right of access
• Cancelling the obligation to carry out negotiations without prior publication in the case of additional works of up to 30%
• Offering subcontractors a choice regarding direct payments
• Defining conditions for amendment of procurement contracts
• Including other minor changes

The thresholds for the scope of use of the ZJN-3 are defined in Article 21 of ZJN-3. ZJN-3 is to be used for public procurement procedures whose value, net of value-added tax (VAT), is equal to or greater than the following thresholds:

a) in classical sector:

• EUR 20,000 for products or services or design contest,
• EUR 40,000 for works,
• EUR 750,000 for social and other special services as defined in Annex XIV and XVII of the Classic Directive 2014, except for the services with the CPV 79713000-5;

b) in infrastructure sector:

• EUR 50,000 for products or services or design contest,
• EUR 100,000 for works,
• EUR 1,000,000 for social and other special services as defined in Annex XIV and XVII of the Classic Directive 2014, except for the services with the CPV 79713000-5.

According to paragraph 2 of Article 21 of the ZJN-3, in public procurement procedures below those values, the contracting authorities are obliged to follow the principles of value for money, efficiency, success, and transparency, and to keep records for these public procurement procedures, communicate them to the national procurement portal annually, and publish all public contracts of value above EUR 10,000 on their web page annually (so-called “notional contracts”). Public procurement procedures above those values have to be published on the national procurement portal. Thresholds for publications in the Official Journal of the EU together with the publication on the national procurement portal correspond to those set in the directives.

For more information about ZJN-3 see:

• FERK, Petra. The New Slovenian Public Procurement Act (ZJN-3), Country Report. European Procurement & Public Private Partnership Law Review, No. 2/2016.

In the procurement procedure, the legal protection of providers, contracting authorities, and the public interest, including the legal protection of the defence and security interest, are provided by the Legal Protection in Public Procurement Procedures Act, which also defines the bodies responsible for the protection of the rights under this Act.