New Regulation of Public Procurement in Slovakia

On 1 January 2010, an Amendment to the Public Procurement Act (Act No. 25/2006 Z.z., as amended) came into force which amended the law in connection with the necessity to implement the subject of Directive 2007/66/EC of the European Parliament and of the Council (“The Remedies Directive”).

The Amendment primarily gives further details of regulation of review procedures, harmonises the standstill periods applied in the procurement process with the periods laid down in the Directive and regulates the whole supervision process directly in the Public Procurement Act.

The Amendment introduces primarily the following changes: 

• The public contracting authority may conclude no amendments to the concession agreement which would materially change the subject of agreement, conditions or the economic balance in favour of the contractor (Section 9(3))
• Documents which prove that the tenderers or interested parties comply with the eligibility requirements and which are executed in the Czech language need not be translated into the Slovak language anymore (Section 19(3))
•  It gives further details of the manner in which the financial and economic situation, technical or professional qualification of the tenderer or applicant may be proven through a third party (not only by means of a promise, but also by means of a contract) (Section 27(2) and Section 28(2))
• Copying the previous regulation of a construction concession, it provides for the rules of awarding a concession agreement to perform services, including the regulation of the process of awarding a concession agreement to perform services (Sections 66-69)
• It omits the section of law which regulates the awarding of concession agreements “below the limit” (the estimated value of the concession agreement represents not less than EUR 360,000 and simultaneously it does not exceed EUR 5,150,000) (omission of Sections 97 and 98)
• It amends the procedure rules of publishing the call for a tender exclusively electronically by the contracting authority as to agreements “below the threshold” to supply goods (Section 99)
• It amends the review procedures applicable to the awarding of public agreements namely the seeking of remedy actions (insertion and a more detailed definition of the facts against which such actions may be sought) and the review of the complaints (a more detailed definition of the actively qualified complainants etc.) (Sections 136 and 138)
• It defines the possibility of the genuine complainants to seek annulment of the agreement or a framework agreement before a court (Section 148a).

Amendments to Cadaster and Building Acts

Within the policy statement, the Slovak government committed itself to regulation and promotion of the establishment of public-private partnerships (so called PPP projects). This has led to the adoption of an Analysis of the legal regulation in relation to the implementability of PPP projects which was worked out by the Ministry of Finance of the Slovak Republic. Complying with the Analysis, on 13 January 2010, the Slovak government adopted the proposed amendments to the Cadastre Act and the Building Act. The amendments will be laid before the National Council of the Slovak Republic for approval in the course of the upcoming months.

Proposed Amendment to Cadaster Act

The amendment to the Cadastre Act aims especially at eliminating impediments of the planned PPP projects implementation. The amendment reacts to increasing requirements of the customers to establish a modern Land Register providing protection of rights to real property comparable with the practice common in the EU.

The amendment introduces especially the following changes: 

• The deed proving ownership of an unfinished construction for the sake of registration at the Land Register shall mean, in addition to he building permit, also the contract for work done and materials supplied concluded with the producer of the work or the concession agreement concluded between the government as the owner of the construction and a private partner in case of PPP projects
• It gives further details of the requirements which must be met by a filed electronic application for the entry of the title to real property and the intended application for the entry of a record of the title
• Simplification of the discontinuance procedure in relation to the application for the entry of a record of the title due to withdrawal and restriction of the possibility to appeal against the decision on discontinuance of proceedings to enter a record of the title
• Reintroduction of the possibility to provide owners, other authorised persons (lessee, mortgagee, municipality property trustee) and persons defined by special regulation (court, tax administrator, distrainor) with title deeds which show that the real property has been marked with a “seal” by the Land Register meaning that the real property is affected by legal proceedings under process.

Proposed Amendment to Building Act

The amendment to the Building Act deals especially with the issues of proving ownership and other rights to land in building procedures and expropriation.

The amendment brings especially the following changes: 

• Insertion of the agreement to agree on easement into the list of possible manners of proving ownership or other rights to lands. Doing so, it refers to a special legal regulation of the concessions which must imply ownership or other rights to land or construction authorising the builder to erect the requested construction on it under the respective PPP project
• Introduction of additional possible manners of expropriation or restriction of ownership title to lands or constructions due to establishment or operation of public airports and communications, navigation and surveillance including the respective runway protection zones
• In cases where the subject of expropriation is real property under execution upon property, the expropriator shall deposit the compensation for the expropriated real property at the court which has decided on the performance of the execution. The Building Authority notifies the respective distrainor of the commencement of execution proceedings, place taking of a hearing and the decision on expropriation

Ľudovít Mičinský V.

ROWAN LEGAL