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Request for Protection of Rights

Request for protection of rights can be submitted throughout the entire public procurement proceeding, and against every activity of contracting authority, except if stated differently in Public Procurement Law.

WHO CAN SUBMIT REQUEST FOR PROTECTION OF RIGHTS?

Request for protection of rights can be submitted by:

BIDDER

APPLICANT

CANDIDATE

INTERESTED PARTY

BUSINESS ASSOCIATION

PUBLIC PROCUREMENT OFFICE

STATE AUDIT INSTITUTION

REPUBLIC ATTORNEY

CIVIL SUPERVISOR

BIDDER

Person who in public procurement procedure offers to deliver goods, to provide services, or to perform works.

APPLICANT

Person who submitted application in the first phase of restrictive procedure, in competitive dialogue, or in qualification procedure.

Three types of public procurement procedures – restrictive procedure, qualification procedure and competitive dialogue, are conducted in two phases. In the first phase applicants' qualifications are being accepted, if it is established that previously set prerequisites have been met. In the second phase, applicants that have the status of candidates, as their qualifications have been recognized, are invited to submit the offer.

CANDIDATE

Person whose qualifications were recognized in the first phase of the restricted or qualification procedure, or in competitive dialogue.

INTERESTED PARTY

Any person having interest to conclude specific public procurement contract.

BUSINESS ASSOCIATION

Business Association can submit the request for protection of rights on behalf of the bidder, applicant, candidate or interested party.

PUBLIC PROCUREMENT OFFICE

It is a special organization whose duties, method of operations and organization structure are prescribed by the Public Procurement Law. It is not obliged to submit the request for protection of rights if asked by bidder, applicant, candidate, interested party or business association if they did not previously use their right to submit the request for protection of rights.

STATE AUDIT INSTITUTION

State Audit Institution is the highest authority for audit of public assets in Republic of Serbia. It is not obliged to submit the request for protection of rights if asked by bidder, applicant, candidate, interested party or business association if they did not previously use their right to submit the request for protection of rights.

REPUBLIC ATTORNEY

Republic Attorney's Office provides legal protection of property rights and interests of Republic of Serbia, autonomous province, cities and municipalities. It is not obliged to submit the request for protection of rights if asked by bidder, applicant, candidate, interested party or business association if they did not previously use their right to submit the request for protection of rights.

CIVIL SUPERVISOR

Civil Supervisor may be a person chosen among prominent experts in the domain of public procurement or in the areas related to the subject of public procurement, or association dealing with public procurement, corruption prevention or conflict of interest prevention. Public Procurement Office appoints Civil Supervisor, who is not obliged to submit the request for protection of rights if asked by bidder, applicant, candidate, interested party or business association if they did not previously use their right to submit the request for protection of rights.

DEADLINES AND WAYS TO SUBMIT REQUEST FOR PROTECTION OF RIGHTS

Request for protection of rights is submitted to Republic Commission and presented to contracting authority.

I

(Article 149 paragraph 3 of Public Procurement Law)

If request for protection of rights challenges type of procedure, contents of the invitation to submit the offers, or contents of tender documents, deadlines differ depending on the type of public procurement procedure.

I.А Request for protection of rights will be considered timely if contracting authority receives it at the latest seven days before the expiry of deadline for submitting the offers in the following procedures:

ОPEN PROCEDURE

RESTRICTIVE PROCEDURE

COMPETITIVE DIALOGUE

NEGOTIATED PROCEDURE WITH INVITATION TO BID

NEGOTIATED PROCEDURE WITHOUT INVITATION TO BID

DESIGN CONTEST

I.B Request for protection of rights will be considered timely if contracting authority receives it at the latest three days before the expiry of deadline for submitting the offers (applications) in the following procedures:

LOW VALUE PUBLIC PROCUREMENT PROCEDURE

QUALIFICATION PROCEDURE

Таble 1

If request for protection of rights disputes the type of procedure, contents of the invitation to submit the offers, or contents of tender documents

TYPE OF PROCEDURE

DEADLINE TO SUBMIT THE REQUEST

TYPE OF PROCEDURE

DEADLINE TO SUBMIT THE REQUEST

- ОPEN PROCEDURE

- RESTRICTIVE PROCEDURE

- COMPETITIVE DIALOGUE

- NEGOTIATED PROCEDURE WITH INVITATION TO BID

- NEGOTIATED PROCEDURE WITHOUT INVITATION TO BID

- DESIGN CONTEST

SEVEN DAYS BEFORE THE EXPIRY OF THE DEADLINE TO SUBMIT THE BIDS (APPLICATIONS) *

- LOW VALUE PUBLIC PROCUREMENT PROCEDURE

- QUALIFICATION PROCEDURE

THREE DAYS BEFORE THE EXPIRY OF THE DEADLINE TO SUBMIT THE BIDS (APPLICATIONS) *

* Request for protection of rights must be delivered to the contracting authority within the prescribed deadline, despite the way it was dispatched (receiving theory).

II

(Article 149 paragraph 6 of Public Procurement Law)

After decision on awarding the contract, concluding framework agreement, acknowledging the qualification or cancelling the procedure is made, deadlines differ depending on the type of public procurement procedure.

II.А Request for protection of rights will be considered timely if it is submitted within ten days from the day said decision was received, in the following procedures:

ОPEN PROCEDURE

RESTRICTIVE PROCEDURE

QUALIFICATION PROCEDURE

COMPETITIVE DIALOGUE

NEGOTIATED PROCEDURE WITH INVITATION TO BID

NEGOTIATED PROCEDURE WITHOUT INVITATION TO BID

DESIGN CONTEST

II.B Request for protection of rights will be considered timely if it is submitted within five days from the day said decision was received, in the following procedures:

LOW VALUE PUBLIC PROCUREMENT PROCEDURE

Таble 2

After decision on awarding the contract, concluding framework agreement, acknowledging the qualification or cancelling the procedure is made

TYPE OF PROCEDURE

DEADLINE TO SUBMIT A REQUEST FOR PROTECTION OF RIGHTS

TYPE OF PROCEDURE

DEADLINE TO SUBMIT A REQUEST FOR PROTECTION OF RIGHTS

- ОPEN PROCEDURE

-RESTRICTIVE PROCEDURE

-QUALIFICATION PROCEDURE

-COMPETITIVE DIALOGUE

-NEGOTIATED PROCEDURE WITH INVITATION TO BID

-NEGOTIATED PROCEDURE WITHOUT INVITATION TO BID

-DESIGN CONTEST

TEN DAYS FROM THE DAY DECISION IS RECEIVED

- LOW VALUE PUBLIC PROCUREMENT PROCEDURE

FIVE DAYS FROM THE DAY DECISION IS MADE

III

(Article 149 paragraph 7 of Public Procurement Law)

Special deadline to submit request for protection of rights is prescribed for negotiated procedure without invitation to bid, where request for protection of rights can be submitted within ten days from the day the decision on awarding the contract has been published on Public Procurement Portal.

IV

(Special types of public procurement procedure)

Special types of public procurement have been introduced, as they provide certain conveniences. On one hand, they were introduced to respond to the demands of growingly dynamic market with simplified and more flexible public procurement rules, and at the same time to maintain legal security and goals of public procurement regulations. On the other hand, they were created in response to the need to use development and technology as support to faster, more economic and more efficient public procurement procedures.

Special types of public procurement procedures understand applying the rules of some of the basic public procurement procedures.

They are:

FRAMEWORK AGREEMENT

It is conducted using the rules of open or restrictive procedure, in order to conclude framework agreement.

Note: special rule is applied when it comes to awarding the public procurement agreement based on framework agreement which doesn't contain precisely defined criteria or prerequisites, when rules for second phase of restrictive procedure are being applied, and it is possible to award this agreement via electronic bidding.

DYNAMIC PROCUREMENT SYSTEM

It is conducted using the rules of open procedure, if not prescribed differently by Article 41 of Public Procurement Law.

ELECTRONIC BIDDING

It is conducted using the rules of open, restrictive or negotiated procedure with invitation to bid prescribed by Article 35 paragraph 1 point 1 of Public Procurement Law.

The request for protection of rights in these cases is being submitted within the deadline defined in accordance with the type of procedure being applied (open, restrictive or negotiated with invitation to bid as in Article 35 paragraph 1 point 1 of Public Procurement Law – table 1 and 2).

Таble 3

Type of procedure whose rules may be applied

Special procedure

ОPEN PROCEDURE

- Framework agreement

- Dynamic procurement system

- Electronic bidding

RESTRICTIVE PROCEDURE

- Framework agreement*

- Electronic bidding

NEGOTIATED PROCEDURE WITH INVITATION TO BID (ARTICLE 35 PARAGRAPH 1 POINT 1 OF PPL)

- Electronic bidding

* When contract is awarded based on framework agreement which does not contain precisely defined criteria or conditions, the second phase of restrictive procedure is being applied, but it is important to point out that in this case such contract might also be awarded via electronic bidding.

CONTENTS OF REQUEST FOR PROTECTION OF RIGHTS

Contents of request for protection of rights are prescribed by Article 151 paragraph 1 of Public Procurement Law.

Request for protection of rights contains:

1) Name and address of claimant and contact person;

2) Name and address of contracting authority;

3) Information on public procurement in question, and/or information on contracting authority's decision;

4) Violations of the regulations regarding public procurement procedure;

5) Facts and evidence proving the violations;

6) Proof of paid fee, as per Article 156 of PPL;

7) Signature of claimant.

SUSPENSION EFFECT OF REQUEST FOR PROTECTION OF RIGHTS

А. SUSPENSION OF ACTIVITIES AFTER REQUEST FOR PROTECTION OF RIGHTS HAS BEEN SUBMITTED, AND BEFORE REPUBLIC COMMISSION MAKES ITS DECISION

Submitted request for protection of rights has suspension effect, which means that all further activities of contracting authority regarding public procurement procedure are being suspended until decision on submitted request for protection of rights is made.[1]

Exceptions to this suspension rule are explicitly legally prescribed and predicted for following situations:

а) When Republic Commission, based on proposal of contracting authority decides otherwise, i.e. allows contracting authority to continue with the activities related to public procurement procedure;

b) When there is negotiated procedure without invitation to bid from Article 36 paragraph 1 point 3 of Public Procurement Law [2].

B. SUSPENSION OF ACTIVITIES DURING THE DEADLINE FOR SUBMITTING OF REQUESTS FOR PROTECTION OF RIGHTS

Submitted request for protection of rights has suspension effect on further activities of contracting authorities, but it is important to point out that certain activities cannot be conducted before expiry of the deadline for submitting of request for protection of rights. For example, based on decision to award the contract public procurement contract cannot be concluded before the expiry of the deadline for submitting request for protection of rights, which can be submitted against such a decision. Further activities can be conducted only after the expiry of deadline for submitting the requests for protection of rights, only if there is no request for protection of rights submitted.[3]

However, there are exceptions to the rule, prescribed by Article 112 of Public Procurement law. Before the expiry of the deadline for submitting the request for protection of rights, contracting authority may conclude the public procurement contract:

1) Based on framework agreement;

2) In case of negotiated procedure as in Article 36 paragraph 1 point 3 of Public Procurement Law;

3) In case dynamic procurement system is applied;

4) In case of low value public procurement procedure as in Article 39 paragraph 6 of Public Procurement Law;

5) In case only one bid was submitted, except in negotiated procedure without invitation to bid.

Although in these cases public procurement contract can be concluded before the expiry of deadline for submitting requests for protection of rights, it is important to emphasize that such a contract couldn't be executed if after it has been concluded contracting authority received a request for protection of rights. The execution of the public procurement contract in this case is possible only if Republic Commission decides otherwise, i.e. if it allows the contract to be executed. Submitting the request for protection of rights in this case postpones the execution of the public procurement contract until Republic Commission makes a decision on submitted request, unless Republic Commission upon proposal of contracting authority decides otherwise.

PROTECTION OF RIGHTS PROCEDURE BEFORE CONTRACTING AUTHORITY

After request for protection of rights is received, it is being checked. The aim is to make sure that certain procedural conditions are fulfilled in order to decide on soundness of the request for protection of rights.

Contracting authority checks out whether the request for protection of rights has been submitted timely, by a person having the authority to submit it, or whether it contains all of the information prescribed by Article 151 paragraph 1 of Public Procurement Law.

Contracting authority is given five days from the day it received the request for protection of rights to check the request and conduct the adequate procedures regarding the request.

Depending of the results of checking out the request for protection of rights, contracting authority:

а) Makes and delivers to the claimant a conclusion dismissing the request due to the lack of capacity, if it establishes that the person that submitted the request doesn't have the authority to do so;

b) makes and delivers to the claimant a conclusion dismissing the request as untimely, if it establishes that the request was submitted after the expiry of the deadline for submitting the requests;

c) Makes a conclusion by which it cancels protection of rights procedure, if in the meantime it received the written notification of the claimant that the request is withdrawn;

d) If contracting authority establishes that the request for protection of rights does not include all of the information prescribed by Article 151 paragraph 1 of Public Procurement Law, contracting authority asks claimant to supplement the request within the deadline prescribed by the law. Contracting authority is obliged to warn the claimant of the consequences ensuing from the failure to comply with the invitation to submit supplement to the request for protection of rights.

After the supplement to the request for protection of rights is received, contracting authority within five days from its receiving:

а) Makes and delivers to the claimant the conclusion to dismiss the request for protection of rights, if it establishes that the supplement to the request wasn't timely and/or in accordance to the invitation to submit the supplement;

b) Makes decision to accept the request for protection of rights, if it establishes that it is founded; [4]

c) Delivers the response to the request for protection of rights and complete documents concerning public procurement procedure to Republic Commission, so that it can decide on submitted request for protection of rights, if contracting authority has not acted in either of the two previously described ways; [5]

d) Makes a conclusion to cancel the protection of rights procedure, if in the meantime it receives the written notification of the claimant on withdrawal of request for protection of rights.

After it receives the request for protection of rights, contracting authority may upon checking establish that the request is submitted untimely or by a person lacking the authority to submit it. In that case contracting authority dismisses the request for protection of rights with a conclusion which is delivered to the claimant within five days from the day the request was received. Another important issue concerns the contents of the request for protection of rights. Namely, request for protection of rights has to contain all the information prescribed by Article 151 paragraph 1 of Public Procurement Law in order to be deemed regular. A request for protection of rights may be regular from the moment it has been received, but it is also possible to make it regular later on. That is why the invitation to supplement a request for protection of rights is important, as this way the request for protection of rights may be made regular. The moment the supplement to the request for protection of rights is received, i.e. the moment the request for protection of rights has been made regular, is important for contracting authority, as within five days from that moment contracting authority is obliged to act in one of the ways prescribed by Article 153 paragraph 1 and 2 of Public Procurement Law. If contracting authority fails to make a decision to accept the request for protection of rights or to deliver the response to the request for protection of rights along with complete documents regarding public procurement procedure to Republic Commission for it to decide, than contracting authority or its responsible person may be fined. Republic Commission imposes fines in accordance with Article 162 of Public Procurement Law.

MEANS PERMITTED BY LAW

Against decisions of contracting authority claimant may submit:

а) Appeal to the conclusion of contracting authority to dismiss the request for protection of rights due to the lack of authority of the person submitting the request. The appeal is submitted to Republic Commission within three days from the day the conclusion was received, while at the same time copy of the appeal is submitted to the contracting authority;

b) Appeal to the conclusion of contracting authority to dismiss the request for protection of rights as untimely. The appeal is submitted to Republic Commission within three days from the day the conclusion was received, while at the same time copy of the appeal is submitted to the contracting authority;

c) Appeal to the conclusion of contracting authority to dismiss the request for protection of rights as incomplete. The appeal is submitted to Republic Commission within three days from the day the conclusion was received, while at the same time copy of the appeal is submitted to the contracting authority.

PROTECTION OF RIGHTS PROCEDURE BEFORE REPUBLIC COMMISSION

After it receives the request for protection of rights from contracting authority, Republic Commission within three days determines whether the request is timely, submitted by the authorized person, or whether it contains all of the necessary information as prescribed by Article 151 of Public Procurement Law.

Republic Commission may ask contracting authority, claimant, and other parties to the procedure, Public Procurement Office, or third party, to submit additional documents, data, explanations or opinions before it makes its decision. Contracting authority, claimant, and other parties to the procedure, Public Procurement Office, or third party have to comply with the demand of Republic Commission within the deadline given by Republic Commission. If contracting authority or claimant fail to act within the deadline given in request for receiving documents, data, explanations and opinions, they will take responsibility for consequences caused, as in that case doubt resulting from the fact that there is a lack of evidence will be ascribed to the party directly responsible, as it failed to comply to the request of Republic Commission within given deadline. Republic Commission will therefore make its decision based on evidence available [6].

Republic Commission has to decide on request for protection of rights within twenty days from the day it received regular request for protection of rights, and no later than thirty days from the day it received regular request for protection of rights. This deadline might be exceptionally, in particularly justifiable cases, extended for another fifteen days, and both claimant and contracting authority are to be informed on this, along with explanation of the reasons for the extension.

PREVIOUS CHECKING

Once it establishes that the request for protection of rights is untimely, Republic Commission makes a conclusion to dismiss it.

If it establishes that the request for protection of rights is submitted by persons that have no authority to submit it, Republic Commission makes a conclusion to dismiss the request for protection of rights.

If it establishes that the request for protection of rights does not contain all of the information prescribed by Article 151 paragraph 1 of Public Procurement Law, Republic Commission invites contracting authority to supplement the request for protection of rights.

If it establishes that the request for protection of rights has not been supplemented within the given deadline and in accordance with the invitation, Republic Commission makes a conclusion to dismiss the request for protection of rights.

DECISION ON FOUNDNESS OF REQUEST FOR PROTECTION OF RIGHTS

Republic Commission decides within the scope of submitted request for protection of rights, and is obliged to make a stand on every allegation of the claimant, as well as on violations that claimant has not been aware of, and which influenced the decision of the contracting authority regarding public procurement procedure.

Republic Commission will present the evidence which it estimates to be of importance for making of rightful and legal decision on submitted request for protection of rights.

To that extent Republic Commission may, before it makes its decision, ask contracting authority, claimant, other party in the procedure, Public Procurement office or third party to submit additional documents, information, explanation or opinion, and contracting authority, claimant, other party in the procedure, Public Procurement office or third party are obliged to comply to this invitation within the given deadline.[7]

It is possible for parties in the proceeding to propose oral hearing, if complexity of the findings of facts or legal situation asks for it. Claimant may propose oral hearing to be held via submitted request for protection of rights, and contracting authority may ask for it in its response to the request for protection of rights.

Republic Commission by its decision:

1) Adopts the request for protection of rights and cancels the public procurement procedure completely or partially, if request for protection of rights is well founded;

2) Dismisses the request for protection of rights as unfounded.

MEANS PERMITTED BY LAW

An appeal on decision of Republic Commission cannot be made.

Administrative proceedings may be initiated against the decision of Republic Commission within thirty days from the day the decision of Republic Commission has been received.

Administrative proceedings may also be initiated if Republic Commission failed to make or deliver its decision within the deadline prescribed by Article 158 of Public Procurement Law.

Administrative proceedings do not suspend the execution of the decision of Republic Commission.

[1] Public Procurement Contract that would be concluded after a request for protection of rights is submitted would be annulled, and Republic Commission is authorized to annul the contract either on its own initiative, or upon request of claimant or interested party. This act of contracting authority represents the offence and can be fined.

[2] In this case claimant may propose Republic Commission to make a decision to prohibit conclusion or execution of public procurement contract.

[3] Public procurement contract concluded before the expiry of the deadline for submitting the requests for protection of rights would be annulled, and Republic Commission is authorized to annul the contract either on its own initiative, or upon request of claimant or interested party.

[4] Decision to accept the request for protection of rights is delivered to the claimant, bidders and Republic Commission within three days from the day it was made.

[5] Contracting authority informs claimant within three days from the day it delivered to Republic Commission documents as per Article 153 paragraph 1 point 2 of Public Procurement Law.

[6] Contracting authority might be fined as per Article 162 of Public Procurement Law if it fails to comply to Republic Commission's request and within the given deadline.

[7] Contracting authority might be fined as per Article 162 of Public Procurement Law if it fails to comply to Republic Commission's request and within the given deadline.

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:

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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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