DNS – What Now Constitutes a Commonly Available Supply or Service

The dispute concerned whether road maintenance services could be procured through a DNS as a method of awarding public contracts. In resolving the issue, the Court provided a more precise interpretation of the vague legal concept known as a “commonly available supply or service.”

The Regional Court had already concluded that such services lack special characteristics and are generally available on the market. While office supplies have traditionally been cited as the typical example of a commonly available supply or service, the interpretation has gradually expanded to encompass services such as construction and technological services. The Regional Court also noted that cleaning and maintenance services are procured through DNS arrangements in the United Kingdom. Until now, however, Czech courts had not addressed this issue directly.

After reviewing the materials, the Supreme Administrative Court held that commonly available supplies or services may be understood as services that:

1. are offered by a relatively broad range of suppliers, are available to a wide range of contracting authorities, and are commonly traded on the market;

2. are procured repeatedly on an ad hoc basis by contracting authorities (or are expected to be procured repeatedly and on an ad hoc basis during the operation of the DNS);

3. have characteristics that only need to be specified by the contracting authorities when awarding individual partial contracts (mini-tenders);

4. may be subject to a certain degree of customization to meet the needs of individual contracting authorities, provided that such customization does not constitute a defining feature of the overall nature and content of the service; and

5. may require a certain preparatory phase or preliminary coordination between contracting authorities and suppliers, provided that such preparation does not result in the service being fundamentally tailored to the specific needs of a contracting authority.

The Supreme Administrative Court emphasized that these conclusions should not be interpreted as allowing virtually any service to be procured through a DNS. While a limited degree of customization and preparatory work is permissible, all of the above conditions must be satisfied simultaneously.

Applying these principles, the Court confirmed that road maintenance services may be procured through a DNS, even though they require a certain degree of preparation and coordination between contracting authorities and contractors. The Court reasoned that the content of such services is relatively standardized across larger municipalities and that the necessary preparatory activities and coordination form a standard part of the service itself rather than constituting an impermissible level of customization.

By contrast, architectural studies are generally linked to a specific location and therefore reflect an individualized requirement. As a result, they cannot ordinarily be procured through a DNS.

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