A contracting authority may not cite the urgency of the procurement if it contributed to that urgency through its own decisions or inadequate preparation of the contract. The Supreme Administrative Court of the Slovak Republic reaffirmed this principle in a dispute with the Trnava Self-Governing Region.
The subject of the court proceedings was the procurement of suburban bus transportation for the Trnava region. The Trnava Self-Governing Region challenged Decision No. 9928-9000/2021 of the Public Procurement Office Council, which found a violation of the rules governing the use of the direct negotiation procedure. Since the Administrative Court in Bratislava dismissed the region’s lawsuit, the region appealed to the Supreme Administrative Court of the Slovak Republic. However, it was unsuccessful even in the cassation proceedings.
The key issue was demonstrating the circumstances that would allow for a deviation from standard competitive procedures.
The direct negotiation procedure cannot be chosen simply because the procuring entity needs to award the contract quickly. This procedure is reserved for specific situations in which a legal justification for its use must be met. At the same time, there must be a clear link between the extraordinary event, the urgency of the procurement, and the need to secure a specific performance.
In this case, the region cited the COVID-19 pandemic and the changes it brought about in the market. However, according to the court, the mere existence of the pandemic was not a sufficient explanation for why it was necessary to proceed with a direct negotiation procedure.
The nature of the service being procured also played an important role. Suburban bus service was not a new need that arose suddenly as a result of the pandemic. Service continued both before the outbreak of the pandemic and throughout its duration. Therefore, there was no specific unforeseeable turning point that would explain the emergence of exceptional urgency and preclude the use of the standard competitive bidding process.
The decision also provides an important clarification regarding responsibility for preparing a public procurement process. The procuring entity cannot shift the consequences of its own actions onto an exceptional legal regime. If the contracting authority finds itself under time pressure—for example, because it canceled a tender or began preparing a new procurement process too late—the urgency arising from these circumstances alone does not authorize it to bypass competitive bidding.
From a practical standpoint, it is therefore necessary to distinguish between urgency caused by a truly exceptional external circumstance and time pressure resulting from the contracting authority’s own actions. These situations cannot be equated.
The message of the decision is clear: an exceptional method of awarding a contract cannot serve as a remedy for inadequate planning. The contracting authority must be able to demonstrate not only that it was under time pressure, but also that this situation arose for reasons that meet the legal requirements for the use of the direct negotiation procedure.
