The person drafting the expert opinion in proceedings to review the actions of the party under audit need not necessarily be an expert witness

On 31st March 2026, The Supreme Administrative Court of the Slovak Republic, by judgment Case No. 2Sfk/38/2025, dismissed the appeal in cassation lodged by an IT and data services provider (hereinafter referred to as the ‘IT company’) against the judgment of the Administrative Court in Bratislava (hereinafter referred to as the ‘Administrative Court’), in a case concerning the review of the actions of the entity subject to inspection by the Public Procurement Office. The basis for the Public Procurement Office’s decision included an expert opinion prepared by an expert who was not registered on the list of experts.

The Ministry of Investment, Regional Development and Informatisation of the Slovak Republic has launched a tender for data integration. Following objections from an IT company, the Public Procurement Office ordered amendments to the tender documents. The contracting authority subsequently amended the deadlines, published the documentation (part of which was made available subject to a confidentiality clause) and concluded an amendment to the contract. The IT company again raised objections to the public procurement procedure, on the basis of which new proceedings were initiated to review the actions of the contracting authority; the Public Procurement Office partially suspended these proceedings and dismissed the remaining objections, a decision which was also confirmed by the superior authority.

The Administrative Court dismissed the action, holding that the procedural errors committed by the Public Procurement Office (failure to make the supporting documents for the decision available) did not render the contested decision unlawful, as the essential parts of the supporting documents on which the Public Procurement Office had relied were incorporated into the first-instance decision and the IT company was able to respond to them during the appeal proceedings. The administrative court also concluded that the expert opinion did not have to be prepared exclusively by an expert witness.

In its cassation appeal, the IT company objected, in particular, to an incorrect legal assessment and argued that an expert opinion within the meaning of Section 173(8) of the Public Procurement Act may only be drawn up by an expert within the meaning of the Experts Act, as the Experts Act constitutes lex specialis in relation to the aforementioned provision. The IT company also objected to an inadequate description of the contract, the failure to make the supporting documents for the decision available, the incorrect publication of an amendment to the contract, and discriminatory requirements in the contract.

The court of cassation dismissed the cassation appeal as unfounded. According to the cassation court, the term ‘expert opinion’ in the context of Section 173(8) of the Public Procurement Act must be interpreted as meaning that not only an expert within the meaning of the Experts Act, but any professionally competent person, is authorised to prepare such an opinion.

The court of cassation dismissed the cassation appeal as unfounded. According to the cassation court, the term ‘expert opinion’ in the context of Section 173(8) of the Public Procurement Act must be interpreted as meaning that not only an expert within the meaning of the Experts Act, but any professionally competent person, is authorised to prepare such an opinion. The assessment of the professional competence of the person preparing the expert opinion in proceedings to review the actions of the party under scrutiny is a matter for the discretion of the Public Procurement Office. The author of an expert opinion, in the context of Section 173(8) of the Public Procurement Act, need not meet the requirements for an expert within the meaning of the Act on Experts. An expert opinion constitutes a means of evidence which is a source of evidence assessed in the proceedings in accordance with the principle of free evaluation of evidence. The author, content and form of the expert opinion may be reasonably challenged by a party to the proceedings within the framework of administrative proceedings.

This was also linked to an objection raised by the IT company, which concerned the inability to comment on the expert opinion prior to the decision being issued. The court of cassation confirmed that the Public Procurement Office had erred by failing to allow the IT company to comment fully on all the supporting documents for the decision prior to its issuance. However, in this specific case, this error did not affect the legality of the decision, as the content of the expert opinion – which formed the fundamental basis for the decision – was cited in the decision; the IT company was able to challenge both its content and the identity of the author in its appeal, and did indeed make use of this opportunity. Setting aside the decision would therefore merely lead to a formal repetition of the proceedings without any real impact on their outcome.

The court of cassation also found the remaining grounds of appeal to be unfounded and therefore dismissed the cassation appeal.

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

The decision was made by Panel No. 2 of the Supreme Administrative Court, composed of: the President of the Panel, JUDr. Elena Berthotyová, PhD. (Fudge-rapporteur), and members of the Panel, JUDr. Marián Trenčan and Prof. JUDr. Juraj Vačok, PhD.