Revisions to the ZPVPJN and their effect on the speed of decision-making in public procurement procedures

The contractor selection process for the Karavanke tunnel has generated a lot of public interest because it has taken so long to arrive at a decision. In December, the Motorway Company of the Republic of Slovenia (DARS) finally issued a contract award decision for construction of the second tube of the Karavanke tunnel. One of the reasons we have waited so long to for a final decision lies in Slovenia’s legislation, which permits such protracted proceedings. 

The amendments to the Public Procurement Procedures (Legal Protection) Act (Official Gazette of the Republic of Slovenia, No. 72/2019, ZPVPJN-C) shall come into force on 19 December 2019. These amendments should ensure faster and more efficient management of procurement procedures, in particular preventing the lengthy decision-making process in the case of requests for review (appeals) and facilitating the faster delivery of procured works or services. The legislature is trying to ensure faster decision-making by way of two new provisions.

The first stipulates  that requests for review shall be given priority in all procedures co-financed by European funds and in procedures with an estimated value of at least EUR 10,000,000. This means that the National Review Commission for Reviewing Public Procurement Award Procedures (DKOM) will consider the matter as soon as it is received, which should ensure a faster decision, even though DKOM still has a 30-day deadline for final decision under the law. At the same time, prioritising certain audit claims means that audit claims not co-financed by the EU or under the EUR 10,000,000.00 threshold will continue to be extended and take a back seat to prioritised audit claims.

The second provision refers to the possibility of unsuccessful bidders filing a lawsuit with the Administrative Court of the Republic of Slovenia after receiving the DKOM’s review decision. This step by the legislator is reasonable as it now fully enforces the right of appeal enshrined in the Constitution and complies with the European Directive, while at the same time it also introduces uncertainty in the finality of the choice of the bidder. A lawsuit filed before the Administrative Court does not prevent the agreement from being signed, but it cannot be ruled out that, as a precautionary measure, contracting authorities will prefer to wait an additional 90 days for the Administrative Court to rule on the lawsuit.

In light of the above, we believe that some projects will benefit from faster and more efficient management of procurement procedures and the conclusion of an appropriate agreement. However, it will be necessary to wait for implementation of the new provisions in practice, which will apply to projects under the EUR 10,000,000.00 threshold, since the signing of a public contract may be significantly extended in such cases due to the possibility of enforcing judicial protection.