NEN System Terms of Use

For the purposes of the NEN System Terms of Use, the following meanings shall be applied:

• procurement procedure documentation: documentation on a procurement process pursuant to Section 216 of the ZZVZ, or a summary of all documents in written or electronic form, outputs from oral communication, records of electronic actions, user operations, and tool activities performed for a given procurement procedure, the acquisition, or else termination, of which is required by the ZZVZ, implementing regulations to the ZZVZ, the NEN System Terms of Use, the Electronic Auction Rules, or the NEN System Operating Rules, including the complete text of the original indicative tenders, tenders, or solutions from all economic operators;

• economic operator: a person who offers supply of supplies, provision of services, or execution of works, or more of these persons together. A branch of a business shall be also considered an economic operator; in such case, the registered office of the branch of a business shall be considered the registered office of the economic operator.

• record-keeping: recording the actions of a contracting authority and an economic operator performed during the implementation of a procurement procedure in the NEN system, within the scope determined by the functionality of the NEN system, the NEN System Terms of Use, the Electronic Auction Rules, and the NEN System Operating Rules;

• the National Electronic Tool (hereinafter referred to as the “NEN system”): a certified electronic tool for implementation of all activities in public procurement;

• NIPEZ: National Infrastructure for Electronic Public Procurement, which is a modular system of information systems supporting electronic processes of public procurement, including modules for adhering to legal obligations, namely the publication system, the NEN system, and interfaces to other internal and external information systems;

• NEN System Operator: an entity that operates the NEN system based on a decision of the NEN System Administrator;

• registered entity: a contracting authority, an economic operator, or joint procurement that has been registered in the NEN system;

• Agreement on the NEN system: a contract concluded between the NEN System Administrator and the NEN System Operator defining the level and intensity of services provided by the NEN System Operator in the provision of the operation of the NEN system;

• joint procurement: the awarding of a public contract by multiple contracting authorities, or a contracting authority along with a person not obligated to comply with the ZZVZ;

• NEN System Administrator: Ministry of Regional Development;

• technical specification of the NEN system: a document "Technická specifikace Národního elektronického nástroje" containing detailed technical requirements for the functionality of the NEN system, particularly requirements related to individual procurement procedures implemented in the NEN system, connections and interfaces to other information systems, and compliance of the NEN system with legislative requirements, which is made accessible by the NEN System Administrator;

• NEN System User: a natural person authorized to act on behalf of or representing the registered entity via the NEN system, and any other person who utilizes the services of the NEN system;

• public portal of the NEN system: a web interface that can be found on the main page of the NEN system. It is a technical device which is publicly and continuously available and secured against unauthorized manipulation. It includes a navigation menu on procurement procedures, contracting authorities profiles, information for NEN System Users, registers of entities, registration to the NEN system, NEN system application and ServiceDesk login, important links, news, and operational information;

• public contract: a public supply contract pursuant to Section 14 (1) of the ZZVZ, a public service contract pursuant to Section 14 (2) of the ZZVZ, a public works contract pursuant to Section 14 (3) of the ZZVZ, a services concession pursuant to Section 174 (3) of the ZZVZ, or a works concession pursuant to Section 174 (2) of the ZZVZ;

• exclusions: exclusions pursuant to Sections 29, 30, 158, 159, 177, 178, 191 of the ZZVZ;

• award: the conclusion of a contract for pecuniary interest between a contracting authority and an economic operator which establishes the economic operator’s obligation to supply supplies, provide services, or execute works;

• procurement procedure: the procurement procedures listed in the Appendix to the NEN System Terms of Use;

• procurement process: the procurement processes listed in the Appendix to the NEN System Terms of Use;

• procurement: in the case of procurement procedures that are not simultaneously procurement processes pursuant to the ZZVZ or specific procedures pursuant to Book Six of the ZZVZ, procurement also refers to keeping records of the result, i.e., the recording of the public contract name, commencement date, type of a procurement procedure/ procurement process, and the result of the procurement procedure/ procurement process, tenders from economic operators, or information about tenders, contract conclusion dates, and the publication of the result;

• contracting authority: a contracting authority defined in Section 4 of the ZZVZ or an entity registered as a contracting authority in the NEN system;

• ZZVZ: Act No. 134/2016 Coll., on Public Procurement, as amended;

• ZVZ: Act No. 137/2006 Coll., on Public Contracts, as amended.

1. The NEN System Operator and any NEN System User are obliged to comply with the NEN System Terms of Use, unless specified otherwise.

2. A contracting authority is entitled not to award public contracts that are not subject to the obligation to be awarded in a procurement process pursuant to the ZZVZ, with the exception of small-scale public contracts whose estimated value exceeds the amount of 500,000 CZK excluding VAT, via the NEN system, unless specified otherwise.

3. A registered entity or any other user may submit a suggestion to the NEN System Administrator for the investigation of an alleged violation of the NEN System Terms of Use, the NEN System Operating Rules, or the Electronic Auctions Rules in the NEN system by the NEN System Operator.

1. The NEN system is an electronic tool pursuant to Section 28 (1)(i) of the ZZVZ, via which a contracting authority implements procurement procedures and retains procurement procedure documentation for the period specified by the ZZVZ or the NEN System Terms of Use.

2. To define the subject of the public contract, the contracting authority shall use the NIPEZ code list and the relevant code from the main vocabulary of the unified classification system (hereinafter referred to as the "CPV code").

1. The NEN System Operator provides operation services of the NEN system to all NEN System Users free of charge. These services include, particularly, the registration of entities in the NEN system, performing or recording of all actions related to the implementation of a procurement procedure, access to publicly available data in the NEN system, or other services defined by the NEN System Administrator.

2. If certain actions performed in the NEN system are subject to a fee by third parties (the issuance or renewal of an electronic signature certificate, etc.), these costs shall be borne directly by the registered entity.

3. The NEN System Administrator issues the NEN System Operating Rules which are binding for the NEN System Operator and NEN System Users and regulate, in particular:

   1. Rights and obligations of registered entities and NEN System Users in connection with the use of the NEN system or individuals involved in its operation, including:

      1. the method and requirements for the registration of entities in the NEN system for the roles of a contracting authority and an economic operator;

      2. the options and procedure for cancelling the registration in the NEN system, including the transfer of procurement procedure documentation;

      3. the procedure for temporary or permanent restriction of a NEN System User’s access into the NEN system in case of a violation of the NEN System Operating Rules.

   2. Required operational procedures and processes, including references to support and maintenance systems of the NEN system, including:

      1. publication of information in the NEN system;

      2. technical parameters of the NEN system and minimum hardware and software requirements for its use;

      3. technical information, including encoding and encryption, that are important for actions performed by registered entities electronically via the NEN system;

      4. standards for data and document submission to the NEN system and the method of communication between registered entities themselves, as well as between registered entities and the NEN System Operator;

      5. operational parameters of the NEN system (such as guaranteed availability of the NEN system, maximum time duration for which data can be lost in case of an outage, etc.), or rules for planned maintenances;

      6. the manner of providing support to NEN System Users, determination of the responsibilities of the NEN System Administrator and the NEN System Operator in providing support for NEN System Users, maximum response times of support for NEN System Users based on request categories (incidents), and the method and scope of training for NEN System Users;

      7. the procedure for submitting and resolving complaints by the NEN System Operator regarding alleged violations of the NEN System Operating Rules, or

      8. licensing conditions for the use of the NEN system by NEN System Users.

4. The NEN System Administrator also issues the Electronic Auctions Rules in the NEN system, which regulate, in particular:

   1. rights and obligations of all entities participating in the electronic auction;

   2. the course of the electronic auction;

   3. technical requirements, or

   4. information handling.

1. An action performed by a registered entity or the NEN system is automatically recorded in the NEN system, and NEN System Users are not allowed to modify the automatically recorded data. NEN System Users may only attach additional information and documents to these data.

2. A NEN System User enters additional data and documents into the NEN system in a way that the procurement procedure documentation is complete and corresponds to the actual course of the respective procurement procedure.

1. A procurement procedure is performed electronically in the NEN system if the following actions are recorded in electronic form via the NEN system during its implementation:

   1. submission/receipt of tenders, indicative tenders, requests to participate, requests to be admitted to the qualification system, or expressions of preliminary interest;

   2. opening of tenders;

   3. evaluation of tenders, and

   4. communication between a contracting authority and an economic operator, as stated in paragraph 2.

2. The communication between a contracting authority and an economic operator particularly includes the following actions:

1. The NEN System Administrator is responsible for the administration and development of the NEN system. The NEN System Administrator’s responsibilities are:

   1. ensuring the functioning of the NEN system for NEN System Users;

   2. verifying the compliance of the NEN system with the technical specification of the NEN system;

   3. issuing and managing the NEN System Operating Rules;

   4. issuing and managing the Electronic Auction Rules.

2. The NEN System Administrator addresses suggestions submitted by registered entities regarding alleged violations of the NEN System Terms of Use, the NEN System Operating Rules, or the Electronic Auction Rules by the NEN System Operator.

3. Based on the evaluation of the operation of the NEN system, the NEN System Administrator may make changes to the scope of the NEN System Terms of Use and the mandatory use of the NEN system.

1. In accordance with the Agreement on the NEN system, the NEN System Operator operates the NEN system and is responsible, in particular, for:

   1. ensuring compliance of the NEN system as an electronic tool pursuant to the ZZVZ with the requirements stipulated by the ZZVZ, the Decree No. 260/2016 Coll., on the establishment of more detailed conditions regarding electronic tools, electronic actions in the awarding of public contracts and the certificate of conformity, and the technical specification of the NEN system;

   2. ensuring compliance with the NEN System Operating Rules and the Electronic Auction Rules and monitoring their compliance by NEN System Users;

   3. ensuring equal access to service provision for all entities using the NEN system;

   4. providing registration of registered entities and its cancellation in the NEN system upon request;

   5. adhering to the operational parameters of the NEN system specified in the NEN System Operating Rules and the Agreement on the NEN system.

2. Furthermore, the NEN System Operator specifically:

   1. creates and manages a unified place for publishing information about procurement procedures implemented in the NEN system (the public portal of the NEN system);

   2. provides statistical data on procurement procedures to the NEN System Administrator, in a manner and scope specified in the technical specification of the NEN system and the Agreement on the NEN system;

   3. informs the NEN System Administrator and registered entities about planned maintenances of the NEN system;

   4. provides the NEN System User Support within the scope defined in the Agreement on the NEN system and the NEN System Operating Rules, while adhering to the requirements of the technical specification of the NEN system when providing the NEN System User Support.

3. The NEN System Operator is obliged to preserve procurement procedure documentation, including audit data, for a period of 10 years from the date of termination of the procurement procedure (or from the moment of any change in the obligation from the contract to the public contract), unless another legal regulation or the NEN System Terms of Use define a longer period. No later than 30 days before the end of the prescribed period for preserving procurement procedure documentation, the NEN System Operator is obliged to notify the contracting authority of the need to transfer the procurement procedure documentation to the technical means of the contracting authority.

4. The NEN System Operator is obliged to provide a contracting authority with access to the procurement procedure documentation using means that allow remote access and to enable the contracting authority to store the procurement procedure documentation on the technical means of the contracting authority in a way that preserves the legal validity of individual documents. The legal validity of the documents must be preserved pursuant to the Act No. 499/2004 Coll., on Archives and Records Management on Amendments to Certain Acts, as amended.

5. If the registration of a contracting authority in the NEN system is to be canceled, the NEN System Operator shall provide such contracting authority with the whole procurement procedure documentation created or recorded by the contracting authority in the NEN system until the expiry of a 2-month period from the termination of registration. In such case, the NEN System Operator shall also enable the contracting authority to store the whole procurement procedure documentation on the technical means of the contracting authority in a way that preserves the legal validity of individual documents in accordance with paragraph 4.

6. If the Office for the Protection of Competition (hereinafter referred to as the "ÚOHS") proceeds pursuant to the provisions of Section 248 at seq. of the ZZVZ or if a decision of the ÚOHS is judicially reviewed, the NEN System Operator shall provide cooperation to the contracting authority if it concerns clarification of an action performed in the NEN system. The NEN System Operator is obliged to provide the cooperation throughout the period of preserving the procurement procedure documentation in the NEN system in accordance with paragraph 3. The NEN System Operator is obliged to provide the contracting authority with the conditions necessary for the contracting authority to make the documentation stored in the NEN system accessible to the ÚOHS.

7. In the event of a registered entity violating the NEN System Operating Rules, the NEN System Operator shall notify the respective registered entity of the violation and the obligation to take necessary actions for remedy.

8. Other obligations of the NEN System Operator exclusively in relation to the NEN System Administrator are stipulated in the Agreement on the NEN system.

1. NEN System Users have rights and obligations that correspond to their role when using the NEN system.

2. A contracting authority has the right to:

   1. register and cancel registration in the NEN system;

   2. administer procurement procedures via the NEN system;

   3. export their data at any time;

   4. obtain statistics on procurement procedures, and if applicable,

   5. keep a record of all actions performed by them.

3. An economic operator has the right to:

   1. register and cancel registration in the NEN system;

   2. participate in procurement procedures implemented via the NEN system, and if applicable,

   3. keep a record of all actions performed by them.

1. The NEN system is configured with parameters for individual procurement procedures to ensure that the implementation of procurement procedures complies with the requirements of legal regulations and acts of the government of the Czech Republic regulating the implementation of procurement procedures via the NEN system.

2. The parameters of procurement procedures in the NEN system are set to allow performing actions in both electronic and paper formats, with subsequent recording of information and documents into the NEN system.

XI.1 - Use of the NEN system for awarding small-scale public contracts

1. The NEN System is voluntarily used for the award of small-scale public contracts unless otherwise specified by internal regulation. The obligation stated in Art. II (2) does not apply to contracting authorities who are not required to use the NEN system for public procurement based on the Government Resolution of the Czech Republic No. 467 of 21 June 2017, on the imposition of the obligation to use the National Electronic Tool in public procurement, as amended by the Government Resolution No. 408 of 19 June 2018, on the amendment of the Government Resolution No. 467 of 21 June 2017, on the imposition of the obligation to use the National Electronic Tool in public procurement.

2. When awarding small-scale public contracts in the NEN system, the contracting authority is obliged to comply with the NEN System Terms of Use, the NEN System Operating Rules, the Electronic Auction Rules, and internal regulations of the contracting authority. If applicable, the contracting authority may also comply with the rules of the relevant grant provider if the small-scale public contract is co-financed from a budget other than the contracting authority's budget (hereinafter referred to as the "Methodological Guideline"). In the event of a conflict between the provisions of the NEN System Terms of Use and the Methodological Guideline, the contracting authority shall follow the provisions of the Methodological Guideline.

3. When awarding a small-scale public contract, the contracting authority may use pre-defined types of procurement procedures with the following parameters:

   1. direct award;

   2. restricted invitation;

   3. open invitation;

   4. small-scale electronic auction for a small-scale public contract;

   5. awarding public contracts based on a framework agreement.

4. Each contracting authority registered in the NEN system may adjust the parameters of individual types of procurement procedures for small-scale public contracts according to their internal regulations, within the range of parameters allowed by the NEN system. If a contracting authority decides to use individual types of procurement procedures for small-scale public contracts based on the parameters set in the NEN system, they shall amend their internal regulations to comply with the NEN System Terms of Use. In the event of a conflict between the parameterization (pre-set parameters) of procurement procedures under Art. XI.1 (6), (7), (8), and (9) of the NEN System Terms of Use and the internal regulations of the contracting authority, the contracting authority shall follow the provisions of their internal regulations.

5. If a contracting authority sends data messages via the NEN system, they may attach a valid recognized electronic signature or guaranteed electronic seal to them.

6. For direct award of a small-scale public contract, there are following pre-defined parameters in the NEN system:

   1. direct award can be implemented if the estimated value of the public contract does not exceed 100,000 CZK, excluding VAT, or

   2. the contracting authority approaches any of the economic operators registered in the NEN system or any other economic operator after their preliminary registration in the NEN system in accordance with the NEN System Operating Rules;

   3. the procurement procedure may be cancelled by the contracting authority at any time until the contract is concluded, however, the contracting authority must state a reason, which will be recorded in the NEN system.

7. To award a small-scale public contract in the form of a restricted invitation, there are following pre-defined parameters in the NEN system:

   1. The contracting authority can implement a restricted invitation if the estimated value of the public contract exceeds:

      1. 100 000 CZK, excluding VAT, for supplies and services, and at the same time does not exceed 750 000 CZK, excluding VAT;

      2. 100 000 CZK, excluding VAT, for construction works, and at the same time does not exceed 2 500 000 CZK, excluding VAT.

   2. In a restricted invitation, the contracting authority shall approach the economic operators who provide the required subject matter of the public contract according to their field of activity. Only the economic operators invited by the contracting authority may submit tenders.

   3. The contracting authority shall establish a time limit for the submission of tenders with regard to the nature of the required performance, however, this time limit must not be shorter than 3 working days.

   4. The procurement procedure may be cancelled by the contracting authority at any time until the contract is concluded. However, the contracting authority must state a reason, which will be recorded in the NEN system.

8. To award a small-scale public contract in the form of an open invitation, there are following pre-defined parameters in the NEN system:

   1. The contracting authority can implement an open invitation if the estimated value of the public contract exceeds:

      1. 750 000 CZK, excluding VAT, for supplies or services;

      2. 2 500 000 CZK, excluding VAT, for construction works.

   2. The invitation to tender, by which the contracting authority shall call an unlimited number of economic operators to submit tenders, shall be published in the NEN system by the contracting authority.

   3. The contracting authority may send the invitation to tender to specific economic operators after its publishing.

   4. Any economic operator interested in the public contract may submit a tender.

   5. The contracting authority shall establish a time limit for the submission of tenders with regard to the nature of the required performance. This time limit must not be shorter than 6 working days.

   6. The procurement procedure may be cancelled by the contracting authority at any time until the contract is concluded. However, each time, the contracting authority must state a reason, which shall be published in the NEN system.

9. For a small-scale electronic auction, there are following pre-defined parameters in the NEN system:

   1. A small-scale electronic auction may only be used by a contracting authority to award a small-scale public contract.

   2. As part of the small-scale electronic auction, the contracting authority shall either invite economic operators who provide the required subject-matter of the public contract according to their field of activity or publish information about the small-scale electronic auction in the NEN system. The contracting authority shall invite economic operators to tender in a form of auction values and improved auction values in one or more auction rounds.

   3. The contracting authority shall establish the date of initiation of the first auction round with regard to the nature of the required performance. However, this moment must not occur earlier than:

      1. the third working day after the launching of the procurement procedure, and only in the case that the contracting authority would be authorized to use a direct award or restricted invitation;

      2. the sixth working after the launching of the procurement procedure, and only in the case that the contracting authority would be authorized to use an open invitation.

   4. The economic operators shall submit tenders in the form of auction values within one or more auction rounds.

   5. Before the initiation of a small-scale electronic auction, the contracting authority is not required to assess compliance with the conditions for participation regarding the qualification criteria of the economic operator.

   6. The procurement procedure may be cancelled by the contracting authority at any time until the contract is concluded. However, each time, the contracting authority must state a reason, which shall be published in the NEN system.

10. When awarding public contracts based on a closed framework agreement outside the procurement process pursuant to the ZZVZ, the contracting authority shall act appropriately in accordance with Section 134, et seq. of the ZZVZ.

11. The contracting authority may choose a stricter procedure for awarding a small-scale public contract than those stipulated in the NEN System Terms of Use, considering the estimated value of the public contract. In such case, the contracting authority is obliged to comply with all the requirements of the procedure chosen for awarding a small-scale public contract in relation to the award of the small-scale public contract.

XI. 2 - Use of the NEN system for procurement processes pursuant to the ZZVZ

1. When awarding a public contract in a procurement process pursuant to the ZZVZ, the contracting authority is obliged to adhere to the ZZVZ and its implementing regulations, the NEN System Terms of Use, the NEN System Operating Rules, and the internal regulations of the contracting authority, and if applicable, the Methodological Guideline if the public contract is co-financed from a budget other than the contracting authority's budget.

2. In case of a conflict between the provisions of the NEN System Terms of Use and the Methodological Guideline, the contracting authority shall follow the provisions of the Methodological Guideline.

XI. 3 - Use of the NEN system for awarding public contracts based on exclusions

1. For awarding public contracts based on exclusions, the contracting authority may use any of the procurement procedures in the NEN system specified in Art. XI.1.

2. If the contracting authority awards a public contract outside the NEN system, they may record it in the NEN system, this does not apply to public contracts under Art. II (2), which the contracting authority is obliged to record.

XI. 4 - Preliminary market consultations

1. A contracting authority may conduct preliminary market consultations in the NEN system by a procedure pursuant to Section 33 of the ZZVZ.

2. The possibility of conducting preliminary market consultations is not related to the estimated value of the public contract.

3. A contracting authority initiates preliminary market consultations via the NEN system by sending an invitation to the economic operators designated by the contracting authority or by publishing an invitation to preliminary market consultations on the contracting authority’s profile. The contracting authority is allowed to create a record of preliminary market consultations conducted outside the NEN system into the NEN system.

4. The NEN System Operator is obliged to preserve documentation related to preliminary market consultations, which is generated for specific preliminary market consultations during the use of the NEN system, for a period of 2 years from the completion of the preliminary market consultations. No later than 30 days before the end of the storage period for documentation, the NEN System Operator is obliged to notify the contracting authority of the need to transfer the documentation to the technical means of the contracting authority.

XI. 5 - Market research

1. A contracting authority may conduct market research in the NEN system, for example, to properly define award criteria and determine the circle of economic operators to whom an invitation to tender will be sent.

2. Market research is not related to the estimated value of the public contract.

3. Market research refers to obtaining information based on the approach to economic operators. This information may be crucial, for instance, for defining the subject of performance, qualification criteria, or evaluation criteria for the given procurement procedure.

4. A contracting authority initiates market research via the NEN system by sending an invitation to the economic operators designated by the contracting authority or by publishing the market research on the contracting authority’s profile. The contracting authority is allowed to create a record of market research conducted outside the NEN system into the NEN system.

5. The NEN System Operator is obliged to preserve documentation related to market research, which is generated for specific market research during the use of the NEN system, for a period of 2 years from the completion of the market research. No later than 30 days before the end of the storage period for documentation, the NEN System Operator is obliged to notify the contracting authority of the need to transfer the documentation to the technical means of the contracting authority.

1. The NEN System Terms of Use come into effect on 19 June 2018.

2. The procurement procedures initiated prior to the effective date of the NEN System Terms of Use shall be completed pursuant to the previous regulations.

3. For the procurement procedures conducted pursuant to the Act No. 137/2006 Coll., on Public Contracts, as subsequently amended, the transitional provisions stipulated in Section 273, et seq. of the ZZVZ shall apply.

4. For the procurement procedures not conducted pursuant to the Act No. 137/2006 Coll., on Public Contracts, as subsequently amended, the transitional provisions stipulated in Section 273, et seq. of the ZZVZ shall also apply.