English summary Public procurement, as a relatively young branch of law, emerging from the American internal army regulations of public contracts, has become one of the most significant instrument of outsourcing execution of work, supply of products and services. In this work I am dealing with construction works, as they are the basis of present and future economic growth. Public tenders for infrastructure, flood control measures, reconstruction of schools and hospitals etc. effectively allocates financial means, but also creates new jobs and opportunities for economic operators hit by the global financial recession. The purpose of this master degree thesis is to analyze the current Czech public procurement legislation with respect of the regulations and directives of the European Union. As it is not possible to give a comprehensive preview of every single problem and question relating public procurement, the focus is on the most problematic part of the Public Procurement Code. The first chapter describes purpose of this specific branch of law providing a short historical background. It also concentrates on the principles of awarding contracts: acting transparently, treating the economic operators equally and avoiding their discrimination. The second chapter explains the basic differences between the...

Resumé Problems associated with awarding of public procurement by sector contracting entities The topic of this Dissertation is presentation of certain problems associated with awarding of public procurement by sector contracting entities. To begin with, basic issues of tenders and public procurement procedures are presented in a legal framework, referring not only to the Laws of the Czech Republic but also to the Laws of the European Union. This part includes definitions of basic terms, especially the public procurement concept and principles of applicable legislation. A short historical context concerning development of the legal norm after 1989 is provided. In the actual text, appropriate attention is paid to differentiation of public contracting entities with an emphasis on the content and development of the term "sector contracting entity". The definition of sector contracting entities is a key term of this Dissertation. The process of awarding of public procurement by a sector contracting entity is subject to numerous legal exemptions, as well as some specific law regulations. These exemptions and law regulations are described and thoroughly analysed in the Dissertation. In relevant cases, a comparison between the existing laws and legislation amendments enacted as of April 1, 2012 is made, completed...

Open and narrower public tender The goal of my diploma thesis is to analyze public tenders in their open and narrower forms. In order to achieve my purpose, for my background information I utilize the Act no. 137/2006 Coll., on Public Contracts with the emphasis on the so-called "Large" amendment to the act on Public Contracts (no. 55/2012 Coll), which was passed in order to make public tenders more transparent, reduce or even clear off corruption from the process of public tenders a lastly to increase the effectiveness of spending public money. Literature is also widely used as sources of information for my thesis. Throughout my diploma thesis, I evaluate the contemporary legal state of public tenders, as well as the view of society on the topic. My diploma thesis consists of nine chapters. The first chapter offers insight into public tenders in the light of European Union Law, from which the Act no. 137/2006 Coll., on Public Contracts rises. Chapter two addresses the basic terminology and principals on which the Act stands upon. Having an understanding of these principles is necessary in order to make a deeper evaluation of public tenders. In order to have integrity of the subject, the third chapter outlines all the types of public tenders which are known in the Act no. 137/2006 Coll., on Public...

<p>The government procurement legislation – i.e. the Swedish procurement law, the EC procurement directives and the WTO’s Government Procurement Agreement – applies on public procurement. Such a procurement exists when the contractor meets the conditions stated in the directives that the organ is to be considered as a contracting auhtority. The conditions are supposed to cover the bodies that objectively are thought to take other considerations than economic when purchasing services or products. The definition of contracting authorities has, however, given rise to several interpretation problems when putting the wording into practice. Since it is the contracting authorities themselves that are responsible for their compliance with the law when purchasing, an unclear definition will result in bodies getting a possibility to, to a larger extent, evade the obligation to comply with the procurement legislation. Because of this, it is of great importance that the courts create a unitary interpretation of the definition; a clear definition serves as a means of exerting pressure. </p><p>The thesis is an investigation of the definition of contracting authority where the primary source of information consists of case law from the European Court of Justice. The purpose is to visualize the underlying philisophy of the regulation with a view to suggest an instrument for determining a body’s status as a contracting authority. Regarding the definition of contracting authority, the thesis discuss three different levels. The first level consists of an examination of the wording according to both the directives and the Swedish law, and then the interpretation of the wording by the European Court of Justice. At the following level, it is set out to illustrate differences between the definition on a national level and an EC level, respectively. Finally, it will be established what legislation technique that seems to have been used when formulating the definition of contracting authority in the directives, and also how the result of this should influence the interpretation of the term.</p>

The government procurement legislation – i.e. the Swedish procurement law, the EC procurement directives and the WTO’s Government Procurement Agreement – applies on public procurement. Such a procurement exists when the contractor meets the conditions stated in the directives that the organ is to be considered as a contracting auhtority. The conditions are supposed to cover the bodies that objectively are thought to take other considerations than economic when purchasing services or products. The definition of contracting authorities has, however, given rise to several interpretation problems when putting the wording into practice. Since it is the contracting authorities themselves that are responsible for their compliance with the law when purchasing, an unclear definition will result in bodies getting a possibility to, to a larger extent, evade the obligation to comply with the procurement legislation. Because of this, it is of great importance that the courts create a unitary interpretation of the definition; a clear definition serves as a means of exerting pressure. The thesis is an investigation of the definition of contracting authority where the primary source of information consists of case law from the European Court of Justice. The purpose is to visualize the underlying philisophy of the regulation with a view to suggest an instrument for determining a body’s status as a contracting authority. Regarding the definition of contracting authority, the thesis discuss three different levels. The first level consists of an examination of the wording according to both the directives and the Swedish law, and then the interpretation of the wording by the European Court of Justice. At the following level, it is set out to illustrate differences between the definition on a national level and an EC level, respectively. Finally, it will be established what legislation technique that seems to have been used when formulating the definition of contracting authority in the directives, and also how the result of this should influence the interpretation of the term.

Les notions de pouvoir adjudicateur et d'entité adjudicatrice délimitent le champ d'application personnel de la réglementation européenne des marchés passés respectivement dans les domaines classiques de l'activité administrative et dans certains secteurs d'utilité publique organisés en réseau. Ces notions sont définies selon une approche fonctionnelle qui soulève des interrogations au regard de différents concepts du droit interne. L'étude de trois exemples représentatifs, à savoir le droit français, le droit allemand et le droit anglais, permet de mettre en évidence ces problèmes qui peuvent être synthétisés autour de deux thématiques: la forme juridique de l'acheteur et sa dépendance à l'égard des pouvoirs publics. D'une part, il s'agit d'étudier les incidences de la nature publique ou privée et, plus généralement, de Ia personnalité morale d'une entité sur la mise en œuvre en droit interne des notions de pouvoir adjudicateur et d'entité adjudicatrice. D'autre part, il s'agit d'examiner, à partir de l'interprétation jurisprudentielle de ces notions mais aussi de certaines réglementations nationales spéciales, dans quelle mesure l'activité de différents organismes et les liens, notamment économiques, qu'ils entretiennent avec les pouvoirs publics justifient de les soumettre à la réglementation de marchés publics. / The concepts of "contracting authority" and "contracting entity" are the defining elements of the personal scope of the EU Directives on Public Sector and Utility Sector Procurement. The content of these concepts is determined according to a functional approach which raises a number of questions in relation to various notions of domestic law. A comparative study of three representative legal orders, namely French, German and English Law, illustrates these questions which revolve around two issues: the legal form of the purchasers and the nature of their dependency on the State. The first issue involves studying the extent to which the public or private nature of an entity as well as, more generally, the existence or lack of legal personality, have an impact on the implementation of the concepts of "contracting authority" and "contracting entity" in domestic law. Based on the relevant EU and national case law as well as on other specific national provisions, the second issue involves examining the extent to which the nature of an entity's activity and its different ties in particular financial, with the State justifies the application of the public procurement rules on such an entity.

The thesis deals with typical decisions made by contracting entities which restrict the competition among economic operators. The thesis analyses the typical mistakes which are made by the contract entities in awarding procedures. The causes of mistakes being made by contracting entities can be summarized into three groups. Into the first group belong conscious mistakes. For these mistakes shall be contracting entities` agents held responsible. Into the second group belong mistakes in planning. Mistakes from the third group are made as a consequence of lack of professional skills. None of these mistakes can be prevented just by an amendment to the Act on Public Contracts. Any proposal of an amendment solving the lack of professional skills shall consider also all connected negative effects; mainly additional time demands, financial costs and the risk of underfinanced praxis turning into formalism. Professionally skilled agents are usually more careful when they apply the Act on Public Contracts because they are aware of legal risks. Considering current limited budget resources it should be decided whether to put stress on cooperation with internal or external experts. The author recommends internal experts because external experts do not do their best if they are aware of the fact being not controlled effectively by internal experts. However the current Act on Public Contracts is not perfect, the duties laid by it are enforced successfully. Considering a new amendment also the legal theory shall be taken into account. The author presumes similarity of preventing of breaches against the Act on Public Contracts and of preventing of crimes. The most important factor preventing from criminality is to be aware that the punishment is inescapable, not its rates. The author points out also the opinion of the general theory of law according to which a new act is to be passed only if there is an objective necessary need. It should not to be passed by a fortuity or because of subjective views. There should be also a time space between the amendments. There was an amendment to Act on Public Contracts approved in 2010 and European Union currently prepares amending of awarding directives. The author therefore prefers improving the praxis of awarding in the Czech Republic by granting additional human resources to the Office for the Protection of Competition to passing of another amendment to the Act on Public Contracts. The scope of the Act on Public Contracts is also not convenient for amending a list of contract clauses which are not allowed to be concluded by contracting entities. There are two reasons. Contracting entities are constituted by various groups of subjects and contracts selling their property are outside the scope of the Act on Public Contracts. Contracting entities should use standard awarding procedure to promote competition among economic operators. They should concentrate on exactness of tender conditions. A good prevention to mistakes in awarding procedure is also good planning and skilled human recourses of contracting entities.