The contracting authority is obliged to describe the subject matter of the contract impartially and in sufficient detail to ensure that the tenders submitted are comparable with one another

On the 19th of March 2026, The Supreme Administrative Court of the Slovak Republic, in its judgment Case No. 4Sfk/63/2025, dismissed the cassation appeal against the judgment of the Administrative Court in Bratislava (hereinafter referred to as ‘the Administrative Court’) concerning the review of the legality of a decision by the Public Procurement Office (hereinafter referred to as the ‘Public Procurement Office’), which had found that the municipality of Balog nad Ipľom (hereinafter referred to as the ‘municipality’) had acted contrary to the law when awarding a contract for the construction of 10 rental flats, as it had failed to describe the subject-matter of the contract clearly, comprehensively and with specific technical requirements. The Supreme Administrative Court also found that, by leasing the land on which the rental flats were to be built to a specific company even before the tender was announced, the municipality had breached the principle of equality and favoured one tenderer.

The municipality launched a tender for the construction of 10 rental flats using the procedure for awarding below-threshold contracts without using an electronic marketplace, by publishing a call for tenders in the Public Procurement Bulletin. The Public Procurement Office (ÚVO) found that the municipality had acted in breach of Act No. 343/2015 Coll. on Public Procurement and on Amendments to Certain Acts, as amended (hereinafter referred to as the ‘Public Procurement Act’) by failing to set out specific requirements in the tender documents and in the description of the subject of the contract, and by providing potential tenderers with only general information without specific technical specifications. Whilst this did not directly prevent potential tenderers from preparing a tender, the municipality exposed itself to a situation where tenders that were not comparable with one another were submitted. The Public Procurement Office also found a breach of the Public Procurement Act in that, even before announcing the public procurement procedure in question, the municipality had leased the land on which the rental flats were to be built to a specific company, thereby giving that company an advantage, as this company was able to submit a tender specifying the plot numbers designated for the construction in question, thereby placing other potential bidders at a disadvantage.

The court of cassation considered the decision of the administrative court, which had endorsed the conclusions of the Public Procurement Office (ÚVO) that, when awarding a contract for the construction of 10 rental flats, the municipality had provided potential tenderers with only a general description of the subject of the contract; it also upheld the ÚVO’s conclusion that it was questionable that, even before the public procurement procedure in question was announced, the municipality had leased municipal land to a specific company, whereas the lease agreement stated that the construction of rental flats had been approved on the land in question and that the tenant was entitled to use it for the purpose of constructing rental flats, which clearly gave the tenderer an advantage in the procurement procedure and created unequal conditions for the submission of tenders.

The court of cassation stated that it is the contracting authority’s duty to describe the subject-matter of the contract in detail, comprehensively and impartially; it may not shift the decision as to where, within the simplified range of the individual parameters indicated, tenderers should submit their tenders onto the tenderers themselves. A greater number of possible technical solutions and (qualitative or quantitative) variability in implementation may result in differences between tenders and render them incomparable.

The court of cassation emphasised that, in the case in question, the description of the subject of the contract had not been drawn up in accordance with Section 42(1) of the Public Procurement Act and point 1 of Annex 3 to the Act, as the municipality had failed to define, in a sufficiently clear manner, the details of the technical and economic, architectural or, where applicable, aesthetic design of the building, nor had it specifically defined the material, structural, technical, layout or operational characteristics, appearance or quality. Furthermore, had one of the tenderers designed the living space of the flats and at the same time been awarded the contract, the municipality would not obtain the best value for money, since even if that tenderer were to submit the lowest price, the average living area of the flats could be substantially smaller than that of the tenderer who came second. The differences in the parameters determining the value of the tenderers’ bids, and the resulting lack of comparability between them, were also capable of influencing other unspecific requirements set out in the description of the subject of the contract or in the tender documents.

According to the court of cassation, the letting of land earmarked for the construction of flats to a specific company was contrary to the principle of equal treatment; this placed other bidders at a disadvantage, and this breach of the Public Procurement Act had an impact on the outcome of the public procurement procedure. According to the court of cassation, by requiring bidders to specify in their tenders the exact parcel numbers and title deeds on which the apartment block in question was to be built, the municipality demonstrated a clear intention to award the contract for the construction of rental flats to a specific bidder, thereby breaching the conditions for fair and honest competition. The contracting authority and the contracting entity are obliged to treat all tenderers and interested parties equally; consequently, no entity on the tendering side may be favoured or disadvantaged in any way.

The court of cassation upheld the decision of the administrative court, which it found to have ruled lawfully, and therefore dismissed the cassation appeal.

This judgment was delivered unanimously by the Supreme Administrative Court; no further remedy is available against it.

The decision was made by Panel No. 4 of the Supreme Administrative Court, composed of: the President of the Panel, JUDr. Monika Valašiková, PhD., LL.M., and the Judges Prof. JUDr. PhDr. Peter Potásch, PhD., and JUDr. Vlastimil Pavlikovský (Judge-rapporteur).