Before the new Public Procurement Law is approved by the Parliament The new version of the Public Procurement Law (PPL) has been much talked about as the new law will ensure greater transparency in public procurement. Has this really happened? According to Article 44(11) of the new PPL, suppliers are no longer involved when accessing electronic means (CVP IS) the examination, evaluation and comparison of tenders submitted via the CVM, and consequently no longer have the right to receive the related information, except to the extent provided for by the law itself. The vast majority of purchases are now carried out by electronic means (CV IS). The law provides for two possibilities of access to certain information
1)Article 58 part 2 of the Public Procurement law – upon receipt of information on the successful tenderer may submit a written notification to the contracting authority (PO) to provide certain information, but only about the successful tender. Upon receipt of a written request from the tenderer (submitted via CVP IS), within 15 days of receipt of the request (not after dispatch) provide the unsuccessful tenderer with the following the characteristics of the successful tender and the relative advantages which led to the award the characteristics of the tenderer whose tender was considered the best, and the tenderer’s the identity of the parties to the contract (i.e. all those with whom the names of the tenderers (i.e. the parties to the preliminary contract); information on the conduct of the negotiations (if the procurement was negotiated) and progress.
2)Article 20 part 4 of the Public Procurement Law – the supplier may request the Contracting Authority to have access to the successful supplier’s tender or application – at the latest within 6 months after the date of award of the contract.
There is one BUT – only information that is not confidential will be disclosed, so it’s the same story again – if the supplier has not indicated that some part is confidential – we will be able to see and receive the information, if he has – we will not see it.
There were high hopes that the new PDO would finally resolve the eternal dispute of whether the name of the manufacturer and model of a product is confidential information or not? Unfortunately, this has not happened.
Article 20 part 2 of the Public Procurement Law sets out what cannot be considered confidential information:
1) if it would violate the law governing the information disclosure requirements or requirements of access to information, and in the case of any infringement of the provisions of the law on access to information or the right to information, or of the laws implementing such laws;
2) if it would violate Articles 33 and 58 of this Law requirements for the publication of a contract, information for candidates and tenderers, including information about the goods, services or services specified in the tender the cost of the works, excluding its components;
3) information on the absence of grounds for the exclusion of suppliers, compliance with qualification requirements, quality management system and environmental management system standards in the documents certifying the absence of grounds for exclusion of suppliers, with the exception of information the disclosure of which would infringe the Law on Legal Protection of personal Data of the Republic of Lithuania the requirements of the data protection legislation or the supplier’s obligations under contracts concluded with third parties;
4) information on the economic operators whose capacities are relied on by the supplier and the subcontractor, except where disclosure would be contrary to the requirements of the Law on Legal Protection of personal Data.
So, as before, there is still a lot of uncertainty as to who can and what cannot be considered as confidential information in public procurement. The PSC has taken the initiative and issued a consultation on, however it should be noted that neither the PPL nor any other legal act
does not give the OPC the right to interpret the provisions of the PPL and to create new rules that are not provided for in the PIA. And in its consultation the OPC does exactly that. It should be noted that such advice does not have legal force, nor is it binding on neither for contracting authorities nor for suppliers, and therefore suppliers and remain free to use creative legal counsel to justify their the confidentiality of the information provided in their proposal. Together we await the latest case law, which will either will confirm or refute the conclusions set out by the PPO the conclusions of the OPC.
Article 33 part 2 of the Law on Public Procurement stipulates that the contract award notice shall be published no later than 30 days after the award of the contract. Here again, the principle of confidentiality applies – no confidential information of the supplier may be published.
So there has been no increase in transparency, and probably not even It is no longer available to suppliers, as they will no longer receive information on the other bidders involved in the procurement (the ranking of bids is no longer carried out or published) and on the prices they have offered, thus significantly reducing the scope for competitive market analysis.
It is recommended to systematically submit requests for access to the prices submitted by the winner, to the qualification, with information on the presence / absence of grounds for exclusion of the winner, on the economic operators used by the winner on whose capacity it relies. However, the restriction on the protection of personal data in practice prevents access to information on the natural persons used.
Recent practice in responding to such requests shows that suppliers have successfully used the institution of protection of confidential information, and contracting authorities are reluctant to disclose even information which should not be considered confidential according to the advice of the PSC.
NEĮPRASTAI MAŽA KAINA VIEŠUOSIUOSE PIRKIMUOSE: TEISINIAI PATARIMAI