The Public Procurement Office has the power to amend the reference provided by the contracting authority and the contractor, in accordance with the actual situation

On 26th February 2026, The Supreme Administrative Court of the Slovak Republic, in its judgment ref. Case no. 2 Sfk 39/2024, dismissed the appeal in cassation lodged by the Public Procurement Office against the judgment of the Administrative Court in Bratislava (hereinafter referred to as the ‘Administrative Court’) concerning the amendment of a reference in a public procurement contract between a construction company and the city of Trnava. The Supreme Administrative Court held that the Public Procurement Office is obliged to thoroughly assess a contractor’s request to amend a reference, as the reference may affect the contractor’s reputation and their future business activities.

The City of Trnava, acting as the contracting authority, concluded a works contract with a construction company for the complete refurbishment of a care home. The City of Trnava drew up a reference concerning the performance of the contract in question, which was published in the register of references maintained by the Public Procurement Office. The construction company submitted a request to amend the reference and asked for the reference to be removed from the register of references or, alternatively, for it to be corrected. The Public Procurement Office concluded that there were grounds for amending the reference in connection with the withdrawal from the works contract.

The construction company brought an administrative action against the amendment to the tender reference. In the first part of its judgment, the administrative court dismissed the action against the Public Procurement Office’s decision on the grounds that the construction company had requested the amendment to the tender reference, its request had been granted, and therefore, in the administrative court’s view, there had been no infringement of its subjective rights. The administrative court annulled the part of the decision relating to the amendment of the reference in the second part, on the grounds that the principles of administrative procedure must also apply to special administrative proceedings, which, by way of exception, exclude the application of the Code of Administrative Procedure. In light of these principles, the Public Procurement Office was obliged to decide in such a way that the reference corresponded to the actual state of affairs. In this regard, the contractor had the right to submit evidence, whilst the Public Procurement Office was obliged, during the process of taking evidence, to determine whether the contracting authority had breached its obligations, which constituted a valid ground for the contractor to withdraw from the contract. The administrative court ruled that the Public Procurement Office was obliged to reflect these conclusions in the amendment to the reference drawn up by the contracting authority.

The Public Procurement Office lodged an cassation appeal against the administrative court’s judgment. The court of cassation highlighted the nature of the reference, which is an electronic document containing confirmation of the delivery of goods, the performance of construction works or the provision of a service; it has specific requirements and is freely available within the register of references published on the Public Procurement Office’s website. The reference serves as evidence of the contractor’s technical or professional competence and as proof of the details of the contractor’s performance of the contract. By submitting a proposal to amend a reference, a contractor seeks to have a reference drawn up by a contracting authority or contracting entity amended if, in the contractor’s opinion, it is incorrect, for example because it does not contain true or complete information regarding the performance of the contract. The wording of the reference may have a significant impact on the contractor’s reputation and their future activities in the competitive market.

The court of cassation drew attention to the fact that all information contained in the reference must reflect reality as accurately as possible. An inaccurate or unclear reference may result in the specific contractor to whom the reference relates being viewed in a light that does not reflect the actual situation, which may have a negative impact on their future business activities. The contractor may therefore request the contracting authority or the contracting entity to amend the reference if it does not correspond to the actual situation. If the contracting authority or the contracting entity does not comply with this request, the contractor may submit a proposal to amend the reference to the Public Procurement Office.

The very fact that the contractor – a construction company – did not agree with the reference provided by the contracting authority – the City of Trnava – necessarily gives rise to a dispute between these parties regarding the interpretation of the facts set out in the reference. If the Public Procurement Office were to forgo the opportunity to assess the disputed points as part of the amendment to the reference, the amendment itself would not be enforceable. For this reason, the Public Procurement Office is obliged to assess all factual and legal circumstances and subsequently amend the reference so that it reflects the actual situation. The administrative court, according to the court of cassation, also rightly pointed out that information regarding the contracting authority’s withdrawal from the contract is a mandatory element of the reference, and therefore these facts must also be duly assessed. At the same time, this approach by the Public Procurement Office does not encroach upon the jurisdiction of the civil courts, which have the power to rule on the validity and effectiveness of acts under private law, as, within the meaning of Section 193 of the Civil Procedure Code, civil courts are not bound by the Public Procurement Office’s assessment of the reference when making their decisions.

The court of cassation concurred with the administrative court’s legal assessment in its judgment insofar as it annulled the decision of the Public Procurement Office on the grounds of an incorrect legal assessment of the case, and therefore dismissed the cassation appeal as unfounded.

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

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