June 23, 2017 / Law / , ,

In the subsequent amendments to the Public Procurement Law Act, a particular emphasis is placed on the execution of social aspects by the public procurement system. The expression of the said objectives includes, but is not limited to, a provision of art. 29a of the Public Procurement Law Act, which provides that the Client specifies, in the description of the subject of the Order for services or construction works, the requirement for the contractor or a subcontractor to employ persons performing the activities indicated by the Client under the employment agreement during the execution of the order, if the performance of these activities consists in the execution of the work in a manner determined in art. 22 § 1 of the Labor Code.

Some of the Clients are attempting to take social aspects into account also in the evaluation criteria for quotations, as, pursuant to art. 91 sec. 2 item 2 of the Public Procurement Law, the evaluation criteria include, without limitation, social aspects along with the professional and social integration of persons, referred to in art. 22 sec. 2, accessibility for the disabled or consideration of the needs of the users.

One of the proceedings under which the Client provided for the employment under the employment agreement in the evaluation criteria for quotations, has been recently dealt with by the National Chamber of Appeal. In the tender for the design, preparation and implementation of the extension of the Preparatory Proceeding Record Digitization System (iSDA), the Client (the National Public Prosecutor’s Office) indicated, as an evaluation criterion for quotations, that “as part of the Contractor’s team organization, the Client takes into account the indicator of persons employed under employment agreement for the period longer than 3 months before the date of submitting the quotation in the total number of members of the  Contractor’s team”.

                The National Chamber of Appeals, in the verdict of April 3, 2017, Ref. No. KIO 486/17, KIO 492/17, indicated that this type of evaluation criterion for quotations is impermissible.

The Chamber concluded that the subject of the order should be executed in particular by persons who have been employed for more than three months prior to the submission of quotations in the employment relationship is not found in the provisions of the Public Procurement Law Act. While the requirement to present the persons remaining in the employment relationship may, in line with the provision of art. 29, sec. 3a, constitute the order description element, the provisions regarding the evaluation criteria for quotations do not indicate such a possibility.

According to the Chamber, the so-called employment-based job refers to the terms of executions of a public procurement and not to the characteristics that the entity applying for its granting should possess. The National Chamber of Appeals pointed out that the acceptance of the Client’s proceedings specified as the employment of persons under employment agreement prior to the deadline for submitting quotations would lead to perversion of the matter of public procurements, i.e. not allowing all the contractors to participate in the execution of the order, in particular small and medium entrepreneurs, who are able to execute the given order properly.

Bearing the above in mind, the Chamber ordered the Client to cross out the evaluation criterion for offers referring to the indicated evaluation method – “Organization of the Contractor’s team” and supersede it with other criterion.