Taksa Uputstvo Projekat UNDP i Republicke komisije OSCE Mailing list Izveštaji Statistika Informator o radu Poslovnik o radu Pravilnik o nabavkama Pravilnik o listi veštaka za javne nabavke Javni poziv za obrazovanje liste veštaka Lista veštaka Plan integriteta
Konkursi Brosura Javne nabavke Publikacije

Proposals

Proposal of contracting authority that submitted request for protection of rights doesn't suspend decision making, i.e. conclusion of the contract or framework agreement and proposal of contracting authority that request for protection of rights submitted after the contract has been concluded in accordance with the article 112. Paragraph 2 of Public Procurement Law does not suspend the execution of the contract

Every submitted request for protection of rights suspends further activities of contracting authority in public procurement procedure, until decision on submitted request for protection of rights is made, unless Public Procurement Law ("Official Gazette of Republic of Serbia" no. 124/12, hereinafter: PPL) specifies otherwise. Contracting authority may submit a proposal that submitted request for protection of rights does not suspend making of decision, or conclusion of the contract or framework agreement in the case where suspended activities of contracting authority in public procurement procedure would cause great difficulties for its business operations, disproportionate to the value of public procurement in question, or it would considerably endanger the interests of Republic of Serbia. Contracting authority believing that above mentioned conditions have been met, is obliged to deliver the request for protection of rights to Republic Commission for Protection of Rights in Public Procurement Procedures (hereinafter: Republic Commission) immediately upon its receiving, without previously checking it. Contracting authority is also obliged to submit complete documents regarding the public procurement, along with explanation of the proposal for making the decision that would allow contracting authority to continue its activities in public procurement procedure, i.e. that would allow it to make its decision, conclude public procurement contract or framework agreement. Republic Commission shall decide to adopt this proposal within five days from the day of its reception, if it establishes that prerequisites given in Article 150 paragraph 3 of PPL have been met, i.e. if suspension of the activities in public procurement procedure upon submitting of the request for protection of rights would cause great difficulties in operating of contracting authorities, disproportionate to the value of the public procurement in question, or if that would considerably endanger the interests of Republic of Serbia.

The exception to the rule that submitted request for protection of rights suspends further activities of contracting authority in public procurement procedure until the decision on it is made, is found in negotiated procedure without invitation to bid from Article 36 paragraph 1 point 3 of PPL. If the request for protection of rights is submitted for this type of public procurement, contracting authority may continue its activities in public procurement procedure in question, without submitting proposal to Republic Commission to allow it to continue its activities upon receiving the request for protection of rights. Although contracting authority in this case has right to continue its activities in public procurement procedure upon submitting of request for protection of rights, contracting authority might choose to suspend its activities. However, even though in this case contracting authority has a free will to decide whether or not to continue the activities once the request for protection of rights was submitted, it cannot conclude or execute the public procurement contract if it receives the decision of Republic Commission prohibiting conclusion or execution of public procurement contract. Republic Commission will make such decision if it adopts the proposal of claimant to prohibit the conclusion or execution of the public procurement contract conducted as negotiated procedure without invitation to bid as in Article 36 paragraph 1 point 3 of PPL. When it comes to this type of procedure, another special rule should be taken into consideration. This rule is applied in case contracting authority concludes the public procurement contract before the expiry of the deadline for submitting the requests for protection of rights. Contracting authority has the right to conclude the public procurement contract in accordance to the Article 112 of PPL. However, if after the conclusion of public procurement contract in accordance with Article 112 of PPL, contracting authority receives the request for protection of rights, it shall prevent the execution of the contract, in accordance with Article 150 paragraph 2 of PPL. In this case contracting authority may submit a proposal to Republic Commission to permit the execution of the concluded public procurement contract. Republic Commission shall adopt such proposal within five days from the day it was received, if it establishes that the prerequisites are met, meaning that suspended activities of the contracting authority in execution of the public procurement contract would cause great difficulties in the operations of the contracting authority disproportionate to the value of public procurement, or that interests of Republic of Serbia would be considerably endangered.

Submitting the request for protection of rights therefore does suspend further activities of contracting authority, except in negotiated procedure as of Article 36 paragraph 1 point 3 of PPL, where certain special rules apply. It is, however, important to point out that certain activities may not be conducted before the expiry of the deadline for submitting the requests for protection of rights. Further activities can only be conducted once the deadline for submitting the requests for protection of rights expires, provided no request was submitted. Public procurement contract concluded before the expiry of deadline for submitting the requests for protection of rights would be annulled, and Republic Commission is authorized to do so on its own accord, or based on the request of claimant or interested party. However, there are the exceptions to the above mentioned rule, prescribed by Article 112 of PPL. Before the expiry of deadline for submitting the requests for protection of rights, contracting authority may conclude the public procurement contract:

Based on framework agreement;

If conducted public procurement procedure is negotiated one, referred to in Article 36 paragraph 1 point 3 of PPL;

If conducted public procurement procedure is dynamic procurement system;

If conducted public procurement procedure is low value one, referred to in Article 39 paragraph 6 of PPL;

If only one bid is submitted, except in the case of negotiated procedure without invitation to bid.

Although public procurement contract may be concluded in all above mentioned cases and before the expiry of deadline for submitting requests for protection of rights, such contract cannot be executed if it happens that after its conclusion in accordance with the Article 112 of PPL contracting authority receives the request for protection of rights. The execution of public procurement contract is possible only if Republic Commission decides to allow its execution. In this case, submitted request for protection of rights suspends the execution of the concluded public procurement contract until Republic Commission decides on submitted request, except when Republic Commission decides otherwise upon proposal of contracting authority. It is the proposal to allow contracting authority to execute the concluded public procurement contract. Republic Commission shall decide on this proposal within five days from the day it was delivered, if it is established that the prerequisites from Article 150 paragraph 3 of PPL have been me, i.e. that suspended activities of the contracting authority would cause great difficulties in the operations of contracting authority disproportionate to the value of public procurement, or if it would considerably endanger the interests of Republic of Serbia.

Proposal of Contracting Authority to Allow Conclusion of Public Procurement Contract from Article 30 Paragraph 3 of Public Procurement Law

Contracting authority cannot conclude public procurement contract with a bidder in case there is a conflict of interest.

Conflict of interest as understood by PPL exists if the relationship of representatives of contracting authority and bidder can influence impartiality of contracting authority in deciding with regards to public procurement procedure, i.e.:

1) If representatives of contracting authority or person to him related participates in the management of bidder;

2) If representative of contracting authority or person to him related owns more than 1% of shares or stocks of the bidder;

3) If representative of contracting authority or person to him related is employee of the bidder, is hired by the bidder, or is in some other way business related to the bidder.

Contracting authority, however, may submit a proposal to Republic Commission to approve the conclusion of the contract in case of conflict of interest, if it believes that prerequisites form Article 3 paragraph 3 of PPL are met. Republic Commission with its decision adopts the proposal, if it determines that prohibiting of conclusion of contract would cause great difficulties in operations of the contracting authority disproportionate to the value of public procurement in question, that it would considerably endanger the interests of Republic of Serbia, or if it established that the contracting authority has initiated all the necessary measures to suppress the damaging consequences, that other bidders do not meet the requirements of the procedure, or that selected bidder has offered the price 10% or more than 10 ponders lower than other bidders.

Proposal of Claimant to Prohibit the Conclusion or Execution of a Public Procurement Contract

If the request for protection of rights is submitted in negotiated procedure without invitation to bid as of article 36 paragraph 1 point 3 of PPL, claimant may propose Republic Commission to make a decision to prohibit contracting authority to conclude or execute public procurement procedure. Republic Commission makes a decision by which it either accepts or dismisses the said proposal.

Request of a Claimant or Interested party to Annul Public Procurement Contract

The reasons for annulment of the public procurement contract are listed in Article 163 of PPL.

Public procurement contract can be annulled if it is established that contracting authority:

1) Concluded public procurement contract by applying negotiated procedure without invitation to bid, and there were no reasons provided by PPL to do so, and contracting authority failed to publish its decision to initiate public procurement procedure or its decision on awarding of the contract;

2) Concluded public procurement contract before the expiry of the deadline for submitting requests for protection of rights;

3) Concluded public procurement contract after a request for protection of rights was submitted and before Republic Commission decided on it;

4) Concluded public procurement contract contrary to the decision of Republic Commission as of Article 150 of PPL;

5) Concluded public procurement contract violating the provisions and conditions of framework agreement.

Claimant or interested person as of Article 3 paragraph 1 point 5 of PPL can submit a request for annulment of the public procurement contract. It is submitted to Republic Commission along with a request for protection of rights or within 30 days from the day reasons for annulment became known, and at the latest within a year from the day contract was concluded.

Republic Commission by its decision annuls the public procurement contract.

If annulment of public procurement contract would have disproportionate consequences for operations of contracting authority or interests of Republic of Serbia, Republic Commission will not annul the public procurement contract, but it might reduce the validity period of the contract or impose a fine as of Article 162 of PPL.

Odluke novčano kažnjavanje Odluke zaštita prava Uporedno-pravna praksa iz zastite prava u postupcima javnih nabavki

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:

Read more

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:

Read more

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:

Read more