The Croatian Competition Authority (AZTN) has expressed concerns regarding the public tender procedures conducted by local government units, including the City of Zagreb. The authority noted that certain provisions in the tender documents may violate competition law principles by imposing excessive and restrictive conditions that adversely affect market competition.

AZTN emphasized that every entrepreneur should have the freedom to determine their bid in public tenders, which is fundamental to entrepreneurial freedom and a market economy. In this case, the authority identified a problematic provision in the decision governing the public tender, which stated that if the selected bidder withdraws, the next best bidder is the one who accepts the amount of the first bid.

In its opinion, AZTN analyzed the provisions of the decision regarding the lease of public space in Zagreb and concluded that Article 15, paragraph 1, is not in line with competition principles. The authority proposed that this provision be amended to ensure that the right of preference is granted to bidders who meet specific, objective, alternative, or additional conditions that primarily ensure the quality of the offer is evaluated.

Furthermore, AZTN pointed out Article 39, paragraph 8, which allows the mayor to select the next best offer if the best bidder does not enter into a contract or pay the one-time fee. The authority deemed this provision inconsistent with competition principles and suggested it be revised to select the next best offer based on the tender criteria or to annul the tender if selection is not possible.

AZTN reiterated that while the contracting authority has the right to set tender conditions and selection criteria, these must not undermine competition principles or restrict equal access to the tender and the market. In cases where a contract cannot be concluded with the best bidder, the authority should allow for the selection of the next best offer or annul the tender.

In conclusion, AZTN's opinion stresses that market regulation objectives, including the management of public spaces, must align with competition principles to ensure effective market competition, better offerings for end-users, and transparent and fair management of public resources.