The head of the Czech Competition Authority has ruled that contracting authorities may impose stricter conditions in public tenders related to cybersecurity, even if those requirements partially restrict competition, provided they are objectively justified and proportionate.
The decision by Petr Mlsna, chairman of the Office for the Protection of Competition (ÚOHS), concerned a procurement procedure launched by the Czech Statistical Office (ČSÚ) for IT backbone switches.
The tender had been challenged by Microshop, which argued that several procurement conditions were excessively restrictive. The contested requirements included supplying only original and new products intended for end users, maintaining authorized partnership status with the manufacturer, and guaranteeing at least seven years of authorized service support after delivery.
According to the Czech Statistical Office, the conditions were necessary because the institution performs critical state functions, including processing election results, and therefore must maintain high cybersecurity standards. The office argued the requirements were designed to minimize security risks, prevent unauthorized interference with infrastructure and ensure effective responses to potential security incidents.
In his ruling, Mlsna said limiting the pool of potential suppliers does not automatically render procurement conditions unlawful if they pursue a legitimate objective and comply with the principle of proportionality.
He found that the tender conditions did restrict competition to some extent, but only minimally and for objectively justified operational and security reasons. The restrictions did not favor a specific manufacturer, he noted, but instead required suppliers to belong to the official distribution network of any relevant producer.
“Even though the contracting authority set the three disputed tender conditions without allowing alternative means of compliance, it formulated them broadly enough that, in light of the authority’s legal obligations and the purpose of the public contract, competition was restricted only to an appropriate and minimal degree that was sufficiently justified,” Mlsna said.
The decision also addressed earlier case law cited by the complainant, concluding that those rulings concerned materially different factual circumstances.
