Project duration: 1.10.2022 - 30.09.2024

Project leader: prof. dr. Marko Novak (MLC Ljubljana)

Researchers from AMEU-ECM: Assoc. dr. Luka Martin Tomažič, Assoc. prof. dr. Matej Mertik, Assoc. dr. Barbara Toplak Perovič  

The applicant: MLC Fakulteta za management in pravo Ljubljana, AMEU-ECM project partner

Funder: ARIS (Slovenian Research and Innovation Agency)  

Project description:

The central idea of the project is to advise the main project partner, Holding Slovenske elektrarne, regarding certain aspects of public procurement procedures. In this context, we focus on the main question: when can the public procurement contract be changed. When implementing a public procurement contract, clients often encounter circumstances that they could not have foreseen before concluding the contract, despite all due diligence, or circumstances that do not significantly change the contractual obligations, but nevertheless change certain elements of the valid contractual relationship. In such cases, certain contractual provisions should necessarily be adapted to the existing circumstances and thus change the valid contract without having to re-implement the public procurement procedure or concessions, but until now such changes have run the risk of violating the applicable legislation in the field of public procurement or concessions. These types of changes in the public procurement process are particularly relevant in the field of energy, where matters on the market move quickly and a delay in the appropriate business reaction or adjustment may cause certain business damage.

Views on the admissibility of changes to contracts on public procurement should therefore be supplemented by the formulation of a thesis on the possible extension of comparable standards of interpretation of admissibility from the contractual (executive) also to the tendering phase of the public procurement/concession awarding process. In these cases, there are no differences between public procurement and concessions (unlike the assumptions and consequences of the admissibility of changes). The legal basis is thus provided, but it is not entirely clear how to implement this in practice, which of course depends on the successful legal argumentation of a particular change.

The actuality of this type of change should first be justified economically and commercially, which requires a detailed analysis in this area. In this regard, we will develop an appropriate optimization model in this area. However, in order to have a better overview of the economic efficiency of public procurement procedures, we will create a model based on blockchain technology. However, even if we have some economic justification for changing the public procurement, this does not mean that it is legally justified. This is our broader ambition, because we also want to look at how the argumentation of a legal-business decision in this area would work. In this area, too, we will develop a model of legal-business argumentation, which will first determine the premise intended for business-economic optimization, and the second premise will be the use of an appropriate legal provision with appropriate interpretation and argumentation. The model of legal-business argumentation can be taken into account in a wide variety of interdisciplinary fields, but here we apply it to the issue of public procurement in the field of energy, whereby the amendment of the public procurement contract represents a special element in this model. It should be added that in the field of energy as an infrastructural activity, even in the positive law of both the EU and the Republic of Slovenia, certain peculiarities apply. The restrictions are somewhat less strict than in the case of public procurement.

The interdisciplinarity of the project, which combines economic-business and legal aspects (public procurement law) and adds legal theoretical emphasis (in the sense of the validity of the contract amendment and legal argumentation), is complemented by an additional aspect that extends to the field of administrative and organizational sciences. It is about researching the existing state of organizational energy in the management of individual public procurement projects in HSE. We will extend the research to the management of public procurement projects of other legal entities for the purpose of comparison. Also, for the purpose of comparative analysis of factors of organizational energy that accelerate optimization, we will also use the already existing database of measurements of other projects. In this regard, we will extract good management practices that contribute to the optimization of project management (public procurement) and implement them on a pilot basis for the management of public procurement projects at the client, i.e. HSE.