The importance of negotiations with suppliers in ICT public procurement

Public procurement in the ICT sector poses specific challenges for contracting authorities, ranging from rapid technological developments and ensuring compatibility with existing infrastructure to the risk of dependence on a single supplier. In such a complex environment, open communication with the market is key, as it can significantly contribute to the quality of the tender conditions and to achieving genuine competition. These aspects are examined in detail by experts on this issue, attorney Barbora Vlachová and her colleague David Šorf, who highlight the opportunities offered to contracting authorities by the Public Procurement Act and emphasize the importance of a responsible and transparent approach to dealing with suppliers.

Specifics of ICT

It is no news that a completely unique category has emerged in public procurement in many respects – ICT contracts. Although we still find relatively standard purchases of hardware and software here, there is a growing need on the part of public contracting authorities to create complex software solutions or robust hardware structures. Many public contracting authorities have already undergone many years of “silent” development of their infrastructure, which makes it difficult to specify new requirements. The current situation places high demands on contracting authorities to purchase what they need while maintaining competition and not devaluing the infrastructure in which they have continuously invested considerable resources.

Contracting authorities are thus faced with challenges such as rapid technological development, compatibility with existing infrastructure, avoidance of vendor lock-in, and the sustainability of newly supplied technologies. All these requirements are then reflected in the drafting of the tender specifications. This is all the more true given that the contracting authority is not an expert in the subject matter of the contract, which is a long-established fact in the decision-making practice of the Office for the Protection of Competition (hereinafter referred to as the “Office”), but with fatal consequences for the procurement procedure. In the procurement procedure, there may be misunderstandings between the contracting authority and the supplier, or a situation may arise where the supplier is aware of the lack of key information and is forced to take a risk in its tender and reflect this risk in the tender price.

In such a situation, one of the best options available to the contracting authority is to negotiate with the suppliers. Contracting authorities are still concerned about this combination, but Act No. 134/2016 Coll., on Public Procurement (hereinafter referred to as the “Public Procurement Act”), contains provisions governing such procedures, which, if correctly implemented, are an expression of transparency and a responsible approach on the part of the contracting authority.

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