The Use of Direct Links in ICT – Is It Possible to Enter into Framework Agreements in Light of Current Judicial Practice?

The use of direct references in public procurement refers to a situation in which the contracting authority typically refers directly to specific products or suppliers in the tender specifications.

This procedure has a significant impact on economic competition, especially if a direct reference is used in defining a substantial part or the entirety of the subject of the contract. In such a case, competition among manufacturers is restricted, with economic competition shifting solely to the level of distributors. In the field of ICT, there are then specific reasons why contracting authorities use a direct reference, for example, the need to ensure compatibility or the use of specific functionalities. Furthermore, there are numerous differences among individual products that often cannot be quantified or objectively compared.

The contracting authority is generally not entitled to use a direct or indirect reference to certain suppliers, products, patents for inventions, utility models, industrial designs, trademarks, or designations of origin. The issue and exceptions to this prohibition are regulated in § 89 paragraphs 5 and 6 of Act No. 134/2016 Coll., on Public Contracts, as amended (hereinafter referred to as "ZZVZ"). This article addresses recent decision-making practice regarding the use of this exception, which emphasizes that such an approach by the contracting authority must be justified by the subject of the public contract. Considering that the use of the exception is a restriction of economic competition, the burden of proof for the legitimacy of using this exception lies with the contracting authority.

More on the website pravniprostor.cz