Public contracts resulting from a tender are amended fairly often. This also leads to frequent reviews by the Office for the Protection of Competition. On October 1, 2016, an important law on these issues, Act no. 134/2016., on public contracts, as amended (the “PCA”), came into effect.
Any amendments to contracts concluded under the previous law (Act no. 137/2006 Coll., on public contracts, as amended, the “2006 PCA”) will be governed by the new rules under the PCA. This is made clear by section 273 (6) of the PCA, which states that any changes to obligations arising from public contracts concluded under the 2006 PCA (now amended by the PCA from its effective date) will be subject to the PCA. Under section 222 (5) (c) and section 222 (6) (c) of the PCA, a price increase related to contractual changes should also include any changes to obligations arising from public contracts concluded before the PCA took effect.
In other words, as of October 1, 2016, any changes to older public contracts should be assessed under the PCA rather than the 2006 PCA that was in effect when the contract was concluded. The value of any earlier amendments will, however, be recognised in the scope set by the PCA. The PCA provides a better system for making contractual amendments since it expands the options available to the parties (e.g. by establishing a de minimis system, which was not recognised under the 2006 PCA). On the other hand, the new law puts stricter limits on the use of negotiations without prior public announcement than was the case under the 2006 PCA.
If the statutory requirements are met, service contracts may now be amended through (a) a negotiation process without any prior public announcement or (b) a permitted change of obligations, which would not require any formal proceedings.
As we have noted, the new PCA reduces the scope for the use of negotiations without prior publication. The reason for this is that the conditions for invoking this procedure (as stated in the 2006 PCA) are now covered by the rules on amending existing obligations.
Changes to obligations arising from public contracts are governed, in particular, by section 222 of the PCA, which concerns ad hoc modifications (sec. 222(3), formerly covered by sec. 82 (7) of the 2006 PCA); de minimis changes to obligations (sec. 222(4)); subsequent performance (section 222 (5)); and unforeseeable changes (sec 222 (6)). Other key provisions relate to obligations (sec. 100 (1)); the use of a negotiated process without prior public announcement (sec. 100 (3) combined with sec. 66); subsequent deliveries in negotiated processes without prior public announcement (sec. 64 (b)); changes to itemised budgets (sec. 222 (7)) and other changes covered by negotiated processes without prior publication (e.g. changes resulting from emergencies).