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Principal Legal Positions

3rd General Session held on April 14th 2014, Principal Legal Position no. 16 regarding Article 86 Paragraph 9 of Public Procurement Law

If several bidders in public procurement procedure undoubtedly offer identical goods of the same manufacturer, and only one of them submits the proof of domestic origin of the said goods, contracting authority is not obliged to act in accordance with Article 86 Paragraph 9 of Public Procurement Law and to ask the rest of the bidders to submit evidence of domestic origin of the goods they are offering, but it will be deemed that all of the bidders have offered goods of domestic origin. Explanation:

Article 86 Paragraph 9 of Public Procurement Law ("Official Gazette of Republic of Serbia" no. 124/12, hereinafter: PPL) prescribes that when bidder submits the evidence of domestic origin of the goods offered, contracting authority will, before ranking the bids, ask all other bidders whose bids have been evaluated as acceptable, to state whether or not they offer goods of domestic origin and to submit the evidence for this.

Article 2 Paragraph 1 of Regulation on Method of Proving Domestic Origin of Offered Goods ("Official Gazette of Republic of Serbia" no. 30/2013 hereinafter: Regulation) prescribes that the evidence of domestic origin of goods offered in public procurement procedure is submitted along with the offer of a manufacturer, while Paragraph 2 prescribes that the proof from Paragraph 1 of the Article is issued by Chamber of Commerce of Republic of Serbia upon written request of bidder and in accordance with the regulations regarding customs system.

Therefore it ensues that, when bidder submits the proof of the domestic origin of the goods offered, contracting authority will, before ranking the bids, invite all other bidders whose bids have been evaluated as acceptable to state whether or not they offer the goods of domestic origin and to submit the proof of the origin of the goods as prescribed by Article 2 of Regulation. However, if several bidders offer identical goods of the same manufacturer, which can be established without doubt from submitted offers, and only one of them submits the proof of domestic origin of goods within the bid, Republic Commission believes that in such a case it will be deemed that other bidders who offered identical goods of the same manufacturer have also offered the goods of domestic origin.

Therefore, Republic Commission emphasizes that in such a case contracting authority is not obliged to act in accordance with Article 86 Paragraph 9 of PPL and invite bidders who offered identical goods of the same manufacturer to state whether or not they are offering the goods of domestic origin and to submit proof of it, if from the contents of their bids it can be clearly and undoubtedly confirmed that it is the same product for which one of the bidders in public procurement procedure in question within the bid submitted relevant proof of domestic origin of the goods offered.

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Principal Legal Positions

If certain constituent parts of a bid do not contain some of the data bidder was obliged to supply in the bid, in accordance with the requests of contracting authority as stated in tender documents, contracting authority cannot reject such bid due to the serious deficiencies if bidder provided requested data in some other part of the bid, which enables contracting authority to establish actual contents of the bid with regards to the Article 106 Paragraph 1 Point 5 of Public Procurement Law. Explanation:

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Fact that bidder has not signed the last page of the model of the contract that is a constituent part of a bid, if this is prescribed by tender documents, presents the reason to reject the bid as unacceptable in accordance with the Article 106 Paragraph 1 Point 5 of Public Procurement Law, as signing of the model of the contract represents consent of the bidder with the contents (elements) of the contract that contracting authority would conclude with the chosen bidder, and intent of the bidder to really conclude such a contract in case his bid gets chosen as the most favorable one, without possibility to additionally demand changes of certain elements of the public procurement contract. If the obligation to sign the last page of model of the contract as a constituent part of a bid is not prescribed in tender documents, the contracting authority will, before initiating the expert evaluation of bids in accordance with the Article 93 Paragraph 1 of Public Procurement Law, request the bidders that have not signed the last page of the model of the contract to state whether or not they completely agree with the model of the contract and whether or not they accept to conclude the contract in accordance with the model of it in case they are awarded the contract. Explanation:

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If several bidders in public procurement procedure undoubtedly offer identical goods of the same manufacturer, and only one of them submits the proof of domestic origin of the said goods, contracting authority is not obliged to act in accordance with Article 86 Paragraph 9 of Public Procurement Law and to ask the rest of the bidders to submit evidence of domestic origin of the goods they are offering, but it will be deemed that all of the bidders have offered goods of domestic origin. Explanation:

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