Construction of the new National Library

After analysing the case, the Defender concluded that the Office had been substantively competent to assess the acts of the National Library as the contracting authority within the design competition and to make a decision regarding their legality. At least in cases where a design competition clearly aims towards actual awarding of a public contract, as was the case with the National Library, the Office must take measures to prevent unlawful conduct. The initial decision of the Office on discontinuation of the proceedings due to an alleged lack of substantive competence is therefore considered to be illegal by the Defender.

The Defender also criticises the Office for changing, not entirely comprehensibly, its opinions over time, conducting further inquiries to an unclear extent and with an unclear result and, in spite of the gathered documentation and statements, reaching conclusions on a lack of correctness of the design competition without providing detailed substantiation, and the Office failed to incorporate these conclusions in a decision which could be properly reviewed. The denial of a proper exercise of supervision over compliance with the Public Procurement Act resulted in a long-term lack of certainty both on the part of the contracting authority, i.e. the National Library, and the participants in the competition including the winner. As for the effect of the Office on the media image of the case, the Defender believes that in some cases the media output of the Office did not correspond to reality. The Defender generally commented critically on the inappropriateness of substantive commentaries regarding correctness of the competition given that the Office was simultaneously denying its substantive competence and refusing to make a decision in the matter.

The Defender has sent his critical conclusions to the Office for the Protection of Competition and currently awaits the position of the management of the Office.

Construction of the new National Library

The Defender closed an inquiry into the procedure and decision-making of the Office for the Protection of Competition with respect to the architectonic competition for the design of a new building of the National Library. According to the Defender’s findings, the Office dealt three times with the case. It initially concluded that it was not substantively competent to review acts of the National Library (the contracting authority) within the design competition and discontinued the proceedings initiated by HŠH architekti, s.r.o. It stated that a public contract, i.e. acts of a contracting authority taken in a tender procedure, was not concerned. Two months later HŠH architekti, s. r. o. advised the Office of the risk of awarding the public contract on the basis of the results of the relevant design competition. The Office responded to this by stating that it had found no reasons for commencing administrative proceedings since the procedure of the National Library was subject to an exemption from the application of the Public Procurement Act as a result of applying the rules of international organisations. Although both the National Library and the winner of the competition had pointed to application of the exemption from the application of the Public Procurement Act already in the first procedure, the Office had not dealt with this matter at that time. The Office began to act in the matter for the last time on the basis of a query from the Ministry of Culture, which requested the Office provide a standpoint and recommendation for further steps. Within the aforementioned inquiry, the Office obtained an expert report on the nature of the UNESCO rules and the instructions of the International Union of Architects. It followed from the report that the exemption could not be applied, which was subsequently confirmed by the European Union. The Office therefore advised the Ministry of Culture and the National Library of the inapplicability of the exemption from the Public Procurement Act and informed them that “the winning design was chosen at variance with the procedure envisaged by the law”. It recommended annulment of the competition. The Office did all this through a mere letter rather than an administrative decision and it simultaneously advised the Ministry and the management of the Library that it did not have the power to directly review the legality of “design competitions”. It also pointed out that “…this standpoint cannot replace or predetermine the work of the Office in administrative proceedings that may be initiated by the Office…, if the Office obtains findings on illegal steps of the contracting authority in the tender procedure for the design work or some other related contract”.

After analysing the case, the Defender concluded that the Office had been substantively competent to assess the acts of the National Library as the contracting authority within the design competition and to make a decision regarding their legality. At least in cases where a design competition clearly aims towards actual awarding of a public contract, as was the case with the National Library, the Office must take measures to prevent unlawful conduct. The initial decision of the Office on discontinuation of the proceedings due to an alleged lack of substantive competence is therefore considered to be illegal by the Defender.

The Defender also criticises the Office for changing, not entirely comprehensibly, its opinions over time, conducting further inquiries to an unclear extent and with an unclear result and, in spite of the gathered documentation and statements, reaching conclusions on a lack of correctness of the design competition without providing detailed substantiation, and the Office failed to incorporate these conclusions in a decision which could be properly reviewed. The denial of a proper exercise of supervision over compliance with the Public Procurement Act resulted in a long-term lack of certainty both on the part of the contracting authority, i.e. the National Library, and the participants in the competition including the winner. As for the effect of the Office on the media image of the case, the Defender believes that in some cases the media output of the Office did not correspond to reality. The Defender generally commented critically on the inappropriateness of substantive commentaries regarding correctness of the competition given that the Office was simultaneously denying its substantive competence and refusing to make a decision in the matter.

The Defender has sent his critical conclusions to the Office for the Protection of Competition and currently awaits the position of the management of the Office.