PUBLIC PROCUREMENT
The field of public procurement in the Republic of Serbia is regulated by the Public Procurement Law ("Official Gazette of the Republic of Serbia" No. 124/2012, 14/2015 and 68/2015) and a number of by-laws, mostly regulations that closely define the criteria for the establishment of the Public Procurement Commission, the content of the tender documentation, the rules on the procedure for opening tenders, the manner of keeping records on public procurements and other issues determined by the Law.
The institutions responsible for the adoption, implementation and supervision of the implementation of public procurement policy are the Ministry of Finance (Law on Ministries, "Official Gazette of the Republic of Serbia", No. 44/2014, 14/2015, 54/2015, 96/2015 - other law and 62 / 2017) and the Public Procurement Office (Public Procurement Law). The Public Procurement Office is established as a separate organization that carries out expert tasks in the field of public procurement, provides conditions for economical, efficient and transparent use of public funds for public procurement and fostering competitiveness and equality of tenderers in public procurement procedures. Also, the Public Procurement Law (Article 138) established the Republic Commission for the Protection of Rights in Public Procurement Procedures, as an independent body of the Republic of Serbia, which provides protection of the rights of tenderers and the public interest in public procurement procedures.
In the sense of the Public Procurement Law, the subject of public procurement may be good (purchase of goods, renting of goods and leasing goods), works (execution of works, design and execution of works, construction works) and services (lists of services to which the provisions apply of this Law are given in Annex 1 and Annex 2 which form an integral part of the Law), while the contracting authorities of these procurements are state bodies, autonomous province bodies, local self-government bodies, legal entities that perform activities of general interest and legal entities established by the contracting authority which performs activities of general interest, under the conditions provided by the Public Procurement Law. The Law also foresees procurements to which the provisions of the Law do not apply.
The basic principles of public procurement are the principle of efficiency and economy of the use of public funds, the principle of ensuring competition among bidders, the principle of transparency of the public procurement procedure, the principle of equality of bidders, the principle of environmental protection and ensuring energy efficiency.
Public procurement procedures
By the Article 31 of the Public Procurement Law the following public procurement procedures are predicted:
- open procedure;
- restricted procedure;
- qualification procedure;
- negotiated procedure with invitation to bid;
- negotiated procedure without invitation to bid;
- competitive dialogue;
- design contest; and
- low-value public procurement procedure.
The procurement values representing the upper limit below which the contracting authorities are not obliged to apply the provisions of this Law, as well as the upper limit below which the low-value public procurement procedure is applied, are defined in Article 39. So, according to the Public Procurement Law ("Official Gazette of the Republic of Serbia" No. 124/2012, 14/2015 and 68/2015), low value procurement is considered as procurement whose estimated value is not more than 5,000,000 RSD. For procurement of less than 500,000 RSD the Public Procurement Law is not mandatory.
The public procurement procedure starts with the initiation of the procedure (by bringing a decision to initiate the procedure in writing), which is further carried out by the public procurement commission that is formed by the decision of the contracting authority. The Public Procurement Commission compiles tender documentation (the content of the tender documentation is predicted by the Public Procurement Law and is more closely defined by the Rulebook on Compulsory Elements of Tender Documentation in Public Procurement Procedures and the Method of Evidence of Compliance ("Official Gazette of the Republic of Serbia", No. 86/15)) which shall be published on the Public Procurement Portal and on the website of the contracting authority at the same time as the publication of the invitation to tender.
The contracting authority is obliged to publish a public call for bids for public procurement in the following cases: open procedure; low-value public procurement procedure; negotiating procedure with the publication of the invitation to tender; the application for public procurement in the restrictive procedure, the qualification procedure and the competitive dialogue. Public procurement announcements are published on the Public Procurement Portal and the website of the contracting authority, and in the case of procurements whose estimated value is higher than low value procurement, advertisements are also published on the Official Gazettes Portal of the Republic of Serbia and the regulations base. All public procurement announcements are published in Serbian, and if the procurement value exceeds 250,000,000 RSD for goods and services, or 500,000,000 RSD for works, public procurement announcements are also published in a foreign language commonly used in international trade.
In the procedure only the bids, for which it is established that the conditions for participation of the bidder in the public procurement procedure are fulfilled (the Law defines the mandatory conditions for participation, while certain conditions are more precisely defined in the tender documentation itself) are evaluated. Criteria for evaluating and selecting the most favorable bid are the most economically advantageous bid or the lowest price offered. Although the Law, when selecting the most favorable bid, determines the advantage for domestic bidders in relation to the foreign ones (under the condition that the difference in the final amount of the weight between the most favorable bid of a bidders offering foreign origin goods and the most favorable bid of a bidder offering domestic goods is not greater than 5 in favor of bidder that offer foreign origin goods) as well as the advantage of bidders offering domestic origin goods in relation to those who offer foreign origin goods (under the condition that the offered price is not more than 5% compared to the lowest offered price of foreign bidder), it is predicted that the procurement involving bidders from countries that signed the CEFTA Agreement shall apply the provisions of this Agreement. This Agreement provides that each party shall ensure equal treatment in the public procurement procedure to all bidders of other parties, i.e. that goods, services and bidders of other parties will have treatment that is no less favorable than the treatment of domestic products, services and bidders. Also, it is predicted that public procurement procedures involving bidders from the States signatory to the Stabilization and Association Agreement between the European Communities and their member states, on the one hand, and the Republic of Serbia, on the other hand, apply the provisions of that agreement. After the decision on the selection of the most favorable bid is made, the conclusion of the public procurement contract is approached.
A request for the protection of rights may be filed during the entire procurement procedure, against any act of the contracting authority, unless otherwise provided by the Law. The request for protection of the rights may be submitted by the bidder, the applicant, the candidate, or the interested person, who has an interest in awarding the contract or framework agreement in the specific procurement procedure and who has suffered or could suffer damage due to the actions of the contracting authority contrary to the provisions of the Public Procurement Law, as well as the Public Procurement Office, the State Audit Institution, the Attorney General and the Civilian Supervisor. This request shall be submitted to the contracting authority directly or by mail, and a copy shall be sent to the Republic Commission for the Protection of Rights in Public Procurement Procedures.
The Law predicts specificities related to public procurement in the field of water management, energy, transport and postal services.
Documents in the public procurement procedure
According to the Rulebook on Obligatory Elements of Tender Documents in Public Procurement Procedures and Method of Evidence of Compliance (RS Official Gazette No. 83/15), mandatory elements of tender documentation in open procedure include: general information on public procurement (subject of public procurement, description of each lot if the subject of public procurement is formed by lots); type, technical characteristics (specifications), quality, quantity and description of goods, works or services, manner of conducting control and ensuring quality assurance, deadline, place of execution or delivery of goods, possible additional services etc.; technical documentation and plans; conditions for participation in the public procurement procedure referred to in Article 75 and 76 of the Public Procurement Law and instructions on how to prove the fulfillment of these conditions; criteria for awarding the contract (all elements of the criteria on which the contract is awarded, which must be described and valued, as well as the methodology for allocating weightings for each element of the criteria that will enable the subsequent objective verification of the evaluation of the bids; elements of the criteria, i.e. method, based on which the contracting authority will make the award of a contract in a situation where there are two or more bids with the same number of weights or the same offered price); bid form; price structure form, with instructions on how to fill; cost preparation form; statement of independent offer form; form of declaration of compliance with obligations arising from valid regulations on occupational safety, employment and working conditions, environmental protection, as well as that the bidder does not have a ban on performing the activity in force at the time of submission of the bid; model of contract, or model of framework agreement; instructions to bidders on how to make an offer. The tender documentation for the first phase of the restricted procedure and the qualification procedure includes: general information on public procurement (subject of public procurement, description of each lot, if the subject of public procurement is formed by the lots, in the case of a qualification procedure, the period for which the candidates are recognized qualification); conditions for participation in the public procurement procedure referred to in Article 75 and 76 of the Law and instructions on how to prove the fulfillment of these conditions, with the form of the statement on compliance with the obligations arising from the current regulations on protection at work, employment and working conditions, environmental protection, as well as that there is no ban on performing activities that are on effective at the time of filing the application; way of submitting applications.
The tender documentation in the low-value public procurement procedure includes: general information on public procurement (subject of public procurement, description of each lot, if the subject of public procurement is formed by lots); type, technical characteristics (specifications), quality, quantity and description of goods, works or services, manner of conducting control and ensuring quality assurance, deadline, place of execution or delivery of goods, possible additional services, etc.; technical documentation and plans; conditions for participation in the public procurement procedure referred to in Art. 75 and 76 of the Law and instructions on how to prove the fulfillment of these conditions; criteria for awarding the contract (all elements of the criteria on which the contract is awarded, which must be described and valued, as well as the methodology for allocating weightings for each element of the criteria that will enable the subsequent objective verification of the evaluation of the bids; elements of the criteria, i.e. method, based on which the contracting authority will make the award of a contract in a situation where there are two or more bids with the same number of weights or the same offered price); forms that are an integral part of the offer (bid form, the form of the structure of the offered price, with instructions on how to fill out, the form of the cost of preparing the bid, the form of the statement on the independent offer, the form of the statement on compliance with the obligations arising from the current regulations on protection at work, working conditions, environmental protection, as well as that the bidder does not have a ban on performing the activity in force at the time of bid submission); model of contract, or model of framework agreement; instructions to bidders on how to make an offer; tender documentation may contain other elements which, with regard to the subject of public procurement, are necessary for the preparation of the tender.
Time limits
Deadlines for submission of bids are calculated from the date when the public invitation for public procurement was published on the Public Procurement Portal, or from the date when the invitation for submission of bids was sent to the bidders. The deadline for submitting bids in an open procedure or in a restricted and qualification procedure and competitive dialogue cannot be shorter than 35 days from the day when the public invitation was announced if the estimated value of the public procurement exceeds 250,000,000 RSD for goods and services, and 500.000.000 RSD for works, i.e. it cannot be shorter than 30 days from the date when the public invitation was announced if the estimated value of the public procurement is not more than 250.000.000 RSD for goods and services and 500.000.000 RSD for works, except in cases foreseen by the Law, but even then it cannot be shorter than 20 days, or 15 days from the date of publication of the public invitation. The deadline for submitting bids in a restrictive procedure cannot be shorter than 20 days from the day the contracting authority sent the invitation to the candidates. The deadline for submission of bids in the qualification procedure may not be shorter than 8 days from the day the contracting authority sent the invitation to the candidates. The deadline for submitting tenders in the low-value public procurement procedure may not be shorter than 20 days from the date of sending the invitation to the selected candidates.
The contracting authority is obliged to keep a record of the procedure for opening the bids. The minutes on the opening of bids are signed by the members of the commission and representatives of the bidders who are taking over a copy of the minutes, and the bidders who did not take part in the bidding procedure, the contracting authority is obliged to submit a copy of the minutes within 3 days from the day of opening the bids. The contracting authority announces the decision on awarding the contract on the Public Procurement Portal and on its website within 3 days from the day of issuing this decision. The deadline for submitting a request for protection of rights is 10 days from the date of publication of the decision on the Public Procurement Portal, or 5 days in low-value public procurement procedures.
Ministry of Finance website: www.mfin.gov.rs
Public Procurement Office website: www.ujn.gov.rs
The Law on Public Procurement: http://www.paragraf.rs/propisi/zakon_o_javnim_nabavkama.html