Stanovisko Nadačního fondu proti korupci

At a press conference on 2 May 2017, the Anticorruption Endowment (NFPK) presented its findings about the “Snail Trick”, an amply fitting characteristic of the provision of Section 257 paragraph j) of Act 134/2016 Coll., on Public Procurement, written by the antitrust body, Office for the Protection of Competition (ÚOHS).

ÚOHS subsequently issued a press release on which the NFPK took the following position:

1. ÚOHS claims that its “conduct in the course of administrative proceedings is completely legitimate, as corroborated by the verdicts of the Supreme Administrative Court”. 

NFKP Position: Yes, but the Snail Trick is legal according to the Public Procurement Act only because the ÚOHS made it part of this legislation. The NFPK endeavours to help bring about a change in the Public Procurement Act so that the ÚOHS cannot use the Snail Trick. Anyway, this is what we said at the press conference.

2. ÚOHS argues that blocking period, during which the principal cannot enter into an agreement, was extended by 15 days to 60 days, which would be a sufficient guarantee against the purposeful entering into an agreement and protecting the principal against possible sanctions on the face of breach of the law.

NFKP Position: The 15-day extension of the blocking period does not give guarantees that the ÚOHS shall not use the Snail Trick even if explicitly so allowed by the law, and it has liberally resorted to the trick in the past. There is no guarantee for all complaints to be decided on during the blocking period. Furthermore, the above assertion in no way justifies the set of about 250 futile complaints, filed in 2012-2017. Somebody should bear responsibility for those 250 complaints that have gone sour.

3. ÚOHS says that according to a European Commission position it has, the Snail Trick arrangement is fully compliant with European Union laws.

NFKP Position: If the ÚOHS really has an explicit European Commission ruling that the Snail Trick is fully compliant with European Union laws, let them please present it to the public. The NFPK will forward a request to the ÚOHS, in accordance with Act 106/1999 Coll. on free access to the information that it has indeed requested the European Commission to outline such stance.

4. ÚOHS refers to two sentences from a detailed, eight-page legal analysis concerning the mechanics of appeals.

NFKP Position: The above two sentences were left in the text of our analysis due to an editorial error. However, nothing will change the fact that the law enables the Snail Trick, as the ÚOHS press release admits in several places anyway.

5. Let’s quote from the ÚOHS report: “Paradoxically, the assertions of the author of the analysis provided by the Anticorruption Endowment about the ÚOHS enabling contracts to be signed without considering the material obstacle of crossing legal deadlines, is disproved by the very figures he states, while it is obvious that the ÚOHS as a first-instance authority normally makes its decisions within 60 days (the average decision deadline in 2016 was 31 days discounting court orders, for without the latter the deadline would be only 19 days), and it is evident that in the crushing majority of cases the ÚOHS issues a ruling well before the expiry of the 60-day blocking period. If it cannot be done in exceptional cases (in view especially to the action of the participants who submit proposals for the provision of expert opinions etc.), the ÚOHS shall retain its power to order a precaution in accordance with the general amendment embodied in the Bill of Administrative Procedures.”

NFKP Position: Inasmuch as the ÚOHS has used this procedure to frustrate about 250 complaints to date, with the latest ruling of this type being dated effective as of 19. 4. 2017, there are justified concerns about the ÚOHS’s resolve to use its beloved Snail Trick in future, since the legislation by its own hand explicitly enables such conduct. Nothing is changed by the ÚOHS’s claim that it “normally” issues a ruling within 60 days. “Normally” seldom means always.

As the NFPK told the press, any clerk can issue a precaution, for which act there is no legal claim and its issuance cannot be resisted in any legal manner.

The NFPK will in the near future file a request to the ÚOHS to provide information as per Act 106/1999 Coll. on free access to information, since we would like to know how many of the 250 unsuccessful complaints were subjected to legal expertise, which is what the ÚOHS cites when it makes the Snail Trick. Anyway, the ÚOHS reasoning is quite absurd and inadmissible in a democratic law-abiding state, since it makes one conclude that the ÚOHS shies away from addressing complaints that require broader expertise.

As we said at the press conference, the Snail Trick would not be possible in the neighbouring countries and the principal can enter into a contract only after receiving a statement from the control office if the complaint is legitimate. The NFPK endeavours to help introduce the same legal procedures to the Czech Republic.

Supposing that the ÚOHS’s ambition is to enable effective checks and controls of the legality of public procurement, there is no reason why it should not support the NFPK’s quest for a positive change of legislation, which would render it impossible to enter into a contract while a decision is pending about any contractor complaint. We don’t quite get why the ÚOHS insists on its Snail Trick instead of deleting it from the applicable legislation. brání šnečí fintu místo toho, aby ji ze zákona odstranil. However, the NFPK will continue to press for positive changes in legislation and will not be deterred in its endeavour by misleading media outputs from the ÚOHS.

The Anticorruption Endowment is a fully independent initiative by people radically unprepared to accept a high level of corruption in state administration. One of our goals is to help expose corruption in state administration and support projects exposing corruption.

Contacts: JUDr. Miroslav Cák, NFKP Lawyer, tel.: 734 784 668, email: miroslav.cak@nfpk.cz