DECREEON SALE OF CAPITAL AND PROPERTY BY PUBLIC TENDER("Official Herald of the Republic of Serbia", Nos. 45/2001, 59/2003, 110/2003, 52/2005, 126/2007, 96/2008 and 107/2008) |
Article 1
The present Decree governs the procedure and mode of sale by public tender method (hereinafter: tender) in accordance with the stipulated procedure, conditions and criteria in which bids are publicly opened, evaluated, accepted or rejected, of the following:
1) socially-owned and state-owned capital (hereinafter: capital), and/or property in the entity to be privatized;
2) proprietary securities transferred to the Share Fund in conformity with law, as well as securities of individual shareholders offered for sale simultaneously with the proprietary securities of the Share Fund in conformity with the Law on Share Fund ("Official Herald of the RS", No. 38/01 and 45/05);
3) proprietary securities whose legal owner is: the Republic Fund for Old Age and Invalidity Insurance of Employees, the Republic Fund for Development, the local administration authority, the autonomous province and the Republic of Serbia.
Article 2
Tender is organized and conducted by the Agency for Privatization (hereinafter: Agency) in accordance with law and the present Decree.
On the ground of a special tender or on an invitation, the Agency can engage advisors for the conduct of its operations, and for the support in organizing tenders and in the selection of the best bidder.
An individual employed by the Agency, who has ownership rights in the enterprise to be privatized, the capital or property of which is subject of tender sale, or who participates in a tender, or his relative up to third degree of kinship in a straight line who participates in a tender, cannot be engaged in such a tender.
Article 3
The Tender Commission (hereinafter: Commission), shall be formed by the minister in charge of privatization affairs in accordance with the law.
Appointed to the Commission is one representative each of the local administration authority according to the head office of the entity to be privatized, one representative of the entity to be privatized, one representative of the representative trade union in the entity to be privatized - employer, as well as four representatives from the ranks of republic agencies.
The Chairman of the Commission is appointed from the ranks of the Commission members.
In the event of absence of the Commission chairman or his being prevented to act, the Commission is headed by his deputy.
An individual who has ownership rights in the entity to be privatized, the capital or property of which is the subject of tender sale, or who participates in the tender, or whose relative up to third degree of kinship in a straight line participates in the tender, cannot be a member of the Commission.
Article 3a
The Commission monitors the conduct of the tender and at the proposal of the Agency, approves of the tender results in conformity with the present Decree.
The Commission may make decisions if the majority of its members is present.
Decisions are made by a majority vote of the members who are present.
In case of a tie, chairman's vote is the one that decides.
The Commission enacts rules of procedure by which it regulates the details relevant for its work.
II PREPARATION FOR TENDER SALE
Article 4
Tender sale encompasses:
1) sale preparation;
2) submission and receipt of bids;
3) opening and evaluation of bids;
4) entering into sale contract;
5) closing of transaction.
The closing of transaction shall be understood to mean the completion of sale of capital and/or property after all conditions relating to transfer of title of capital and/or property stipulated on the sale contract have been met.
Article 5
Tender preparation encompasses:
1) Preparation of a tender dossier;
2) Announcement of public invitation for the submission of bids for participating in a tender.
Article 6
Tender dossier consists of:
1) contract on the protection of confidential information;
2) information memorandum on the entity being privatized consisting of: name and address of the entity, description of its main operations, its organizational and ownership structure, the total bookkeeping value of its capital or property expressed in Dinars and its EURO equivalent, business operations data, and the credit-worthiness of the entity;
3) the instruction for bidders that includes: conditions and deadlines for the participation in a tender, requirements for making a comprehensive analysis of business operation of the enterprise (due diligence), time and manner of visiting the entity to be privatized, criteria for ranking of the bids, a copy of the present Decree, and other data in conformity with the present Decree (hereinafter: instruction for bidders);
4) sale contract draft;
5) other information and documentation necessary for the tender sale.
The Agency determines the conditions for participation in a tender, and the criteria for the ranking of offers, which must be time-specified, as well as defined in terms of value, quality and technical matters.
Article 7
The Agency announces public invitation to participation in a tender after the completion of tender dossier specified in Article 6 of the present Decree.
Public invitation provided for in paragraph 1 of the present Article consists of:
1) name, address and other basic information on the entity of privatization (i.e. telephone number, fax number, etc.);
2) description of the main operations;
3) capital ownership structure;
4) percentage of capital, and/or description of property being offered for sale;
5) dates and deadlines for participation in tender;
6) tender code;
7) name of a contact person, in charge of providing detailed information;
8) other information of importance for participation in the tender.
The Agency announces the public invitation referred to in paragraph 1 of the present Article in the public media, and at least in one daily newspaper and on the Internet and, for more important entities of privatization, where the Agency finds it appropriate, the announcement of public invitation to participation in a tender shall be published in foreign press.
Article 8
Tender dossier is sold to natural persons and legal entities, which express their interest in participating in a tender (hereinafter: tender participants) at the price determined by the minister in charge of privatization affairs.
Tender participants are obliged to sign the contract on the protection of confidential information specified in Article 6, sub-paragraph 1, of the present Decree prior to receiving the tender dossier.
III SUBMISSION AND RECEIPT OF BIDS
Article 9
Bids to tender shall be submitted on the basis of public invitation and the tender dossier.
The bid shall be an instrument of acceptance of tender conditions, and/or terms specified in Article 6 of the present Decree, and of offering the price for the subject of tender.
The Agency can demand the report by an independent auditor on the conducted audit of tender participants' accounting statements.
Article 10
Date of announcing the public invitation shall be deemed as the starting date of tender.
Offers are submitted to the Agency within the deadline stipulated in the public invitation, which cannot be shorter than 15 days from the date of announcing the public invitation.
Date of submission of bid to the post office shall be deemed as the date of its submission to the Agency, if the bid is submitted by post.
The bid can be withdrawn by a written request no later than seven days before the expiry of deadline from paragraph 2 of this article.
In the case described in paragraph 4 of this article, the bidder is entitled to the refund of deposit within five days from the date on which the written request for withdrawal is received.
Articles 11 and 12
(Deleted)
Article 13
The bidder pays a deposit in money or submits to the Agency a bank guarantee (hereinafter: deposit) in conformity with the instruction for bidders.
Article 14
The procedure for submitting and receipt of bids, the manner of keeping records of the bids received, the dossier necessary for the identification of tender bidders, the keeping safe of dossier, as well as the manner and time limits for refunding the deposit, shall be specified by the instruction for bidders.
IV OPENING AND EVALUATION OF OFFERS
Article 15
The tender participants shall be informed on time about the place and time of opening of bids.
The Agency, in the presence of the Commission, opens the bids, determines the fact of their timely submission, and their completeness in accordance with the instruction for bidders.
The tender participants, their representatives or mandataries can be present at the opening of bids.
Untimely and incomplete bids will not be considered and the Agency shall inform the tender participant thereof within eight days from the day of opening the bids.
Article 16
After the conclusion of the public opening of bids, the Agency evaluates the bids within 30 days from the day of the opening of bids.
The Commission approves the decision of the Agency referred to in paragraph 1 of the present Article.
The evaluation of bids and the announcing of results of the tender are carried out also if only one bid is submitted.
Article 16a
Bids found by the Agency as failing to meet the tender requirements shall be deemed invalid and the tender participants have to be informed to that effect in writing within five days from the expiry of the deadline specified in Article 16, paragraph 1 of the present Decree.
Where the Agency finds that no bid meets the criteria and conditions of the tender, the tender shall be declared unsuccessful and this fact shall be publicly announced.
Article 16b
The provisions of articles 16a and 16b shall apply also to a tender with one participant, a public auction tender, and a summary proceedings tender.
Article 17
If a bid is not submitted on time, if it is incomplete, void or is not accepted, the deposit is refunded to the tender participant within seven days from the day of signing the sale contract, or within a maximum of 45 days from the expiry of the deadline referred to in Article 16a, paragraph 1 of the present Decree.
The costs of the refund of deposit are for the account of the bidder.
No interest shall be calculated for a deposit refunded on due time.
Interest on arrears shall be paid for a deposit refunded after the deadline for the days exceeding the deadline expiry date, in accordance with the applicable law determining the rate of such interest.
Article 18
The Agency determines the order of valid bids (hereinafter: tender list) by applying the criteria specified in the instruction to bidders.
The best bid is ranked first on the tender list.
The Commission, upon Agency's proposal, approves the results of the tender within 15 days from the receipt of Agency's proposal.
If the Commission fails to approve the tender results, the tender shall be declared unsuccessful.
The Commission may not alter the appraisement of bids by the Agency, or the tender list, by the decision on approving the tender results.
Article 19
Within five days from the day of rendering the decision referred to in Article 18, paragraph 3 of the present Decree, the Agency shall inform in writing all the ranked tender participants about the results of the tender, and shall send an invitation to the participant whose bid is declared as most favorable, for commencing negotiations for the purpose of entering into contract of sale.
Article 19a
The Agency may conduct a public auction tender in case of sale of property of an entity to be privatized.
The public auction tender is a procedure and a mode of sale of property of the entity to be privatized by submitting bids and public competition between tender participants pursuant to the tender dossier.
The Agency renders the decision on conducting a public auction tender within eight days from the expiry of the deadline specified in the public invitation for buying off the tender dossier.
Article 19b
The sale contract in the case of public auction tender is entered into as a contract of adhesion.
The Agency may specify a minimum price for the subject of tender in which case the bids of tender participants must be at least equal to that minimum price.
Taking part in the public auction tender are all the tender participants who meet the tender dossier requirements and improve, in terms of price, their bids at the public auction.
The initial price at the public auctions is equal to the highest price offered.
Public auction is conducted by the Agency in the presence of the Commission.
Article 19c
If only one tender participant responds to the tender whose bid, according to Agency’s finding, meets the tender requirements, the provisions shall apply of articles 20, 21 and 21a of the present Decree.
Article 20
If only one participant responds to a tender, whose bid is found by the Agency as meeting the tender requirements and criteria, the Commission, upon Agency's proposal, may decide to commence negotiations with the only tender participant, or to declare the tender unsuccessful.
The provision specified in paragraph 1 of the present Article shall apply also where, after the opening of the bids, and prior to making a decision on the order of valid bids, one of the participants desists from the bid at the tender.
Article 21
The minister in charge of privatization affairs shall appoint the Commission for Negotiations with the tender participant specified in Article 20 of the present Decree.
The Commission for Negotiations is established within seven days following the day of making decision by the Commission on commencing negotiations with one tender participant.
The number of members of the Commission for Negotiation is determined for each tender separately.
The negotiating commission is authorized to:
1) conduct negotiations with the tender participant, and
2) record and sign minutes of such negotiation.
The Commission for Negotiations makes decisions by a majority vote.
The Commission for Negotiations enacts a standing order to regulate details of the matters important for its work.
The limitations set forth in Article 3, paragraph 5 of the present Decree shall apply equally to the membership in the Commission specified in paragraph 1 of the present Article.
Article 21a
The Commission for Negotiations proposes to the Commission whether to approve the execution of contract of sale with one tender participant within 60 days from the day of establishing the Commission for Negotiations.
If necessary, the time limit specified in paragraph 1 of the present Article may be extended for another 30 days.
The Commission makes the decision on the proposal of the Commission for Negotiations specified in paragraph 1 of the present Article.
If the Commission fails to accept the proposal of the Commission for Negotiations, the Agency, in cooperation with the Ministry in charge of privatization affairs, shall decide on further course of proceedings.
Article 21b
Proprietary securities which are transferred to the Share Fund pursuant to law may not be sold at the summary proceedings tender.
The Agency renders a decision on conducting the summary proceedings tender while making the decision on the method of sale.
Article 21c
Tender dossier at the summary proceedings tender includes:
1) basic data on the commercial company;
2) prospectus of the issuer of securities as prescribed by the law regulating the securities market;
3) instruction to bidders which includes: conditions and time limits for taking part in the tender, description of procedure and time limits for conducting the tender, as well as criteria for establishing a rank-list of bids;
4) accounting value of the share and corrected value of the capital being offered for sale, according to the latest financial report;
5) draft of the sale contract of adhesion.
6) other information and documents necessary for the sale by tender.
The minimum price for the subject of tender may not be under 50% of the corrected value of capital being offered for sale, according to the latest financial report.
The sale contract at the summary proceedings tender is entered into as a contract of adhesion.
Article 21d
Appointed to the Commission for conducting the summary proceedings tender are one representative of the Ministry in charge of privatization affairs, two representatives of the Share Fund, and two representatives of the Agency.
Article 22
The Agency and the buyer sign the sale contract within 30 days from the day of expiry of the deadline referred to in Article 19 of the present Decree.
The deadline specified in paragraph 1 of the present Article may be extended by the Agency for another 15 days.
Article 22a
Where capital, i.e. property of the entity of privatization which underwent the restructuring procedure, while more than one participant responded to the tender, the Agency and the buyer shall sign the sale contract within 30 days from the day of the expiry of deadline specified in Article 19 of the present Decree.
If necessary, the deadline referred to in paragraph 1 of the present Article may be extended by the Agency for another 30 days.
Article 22b
In the case of public auction tender, and summary proceedings tender, the Agency and the buyer sign the sale contract within 15 days from the date of expiry of the time limit referred to in Article 19 of the present Decree.
Article 22v
In the case of tender with one participant, the Agency and the buyer shall sign the sale contract within 15 days from the date of approval of the execution of sale contract.
Article 23
The buyer is entitled to ownership rights in the manner and within the deadline specified in the tender dossier and the sale contract (hereinafter: contract).
If the buyer has paid the deposit in money, the entire amount of the price agreed shall be reduced for the amount of deposit.
Article 23a
In the case of sale of the majority socially-owned capital and/or property, the amount of the price agreed may be paid by the buyer in six annual installments at the most.
The first installment shall amount to 30% of the price agreed and is paid within the deadline specified in the tender dossier and the sale contract, with the proviso that the remaining amount of the price agreed is distributed to five equal annual installments to be increase by an interest calculated by applying the EURIBOR + 2%.
The installments shall be indicated in EURO.
A domestic legal or natural person shall pay the annual installment in Dinar counter-value by the date of maturity at the medium rate of exchange of the National Bank of Serbia.
Should the subject of sale be the state-owned capital and/or property, the price agreed shall be paid in its entirety.
Article 24
Should the tender participant, whose bid was declared as most favorable, fail to sign the sale contract within the time limit specified in articles 22 and 22a of the present Decree, it will be considered that he has desisted from purchase.
In the case specified in paragraph 1 of the present Article, the Agency shall invite the next most highly ranked tender participant from the tender list to sign the contract.
If the two most highly ranked tender participants do not accept to sign the contract, the Agency shall determine further course of action in co-operation with the Ministry.
If the tender participant who is called to sign the sale contract fail to sign the sale contract or fail to effect the payment of the price agreed and/or fail to pay the first installment where the sale price is to be paid in installments, such participant shall forfeit the right to the refund of deposit.
Article 24a
If the sale contract is not signed or if the transaction is not closed, the Agency shall proclaim the tender unsuccessful.
Article 25
The tender participants are entitled to lodge an objection on the ground of legality of conducting the tender procedure.
The objection specified in paragraph 1 of the present Article is to be submitted to the ministry in charge of privatization affairs (hereinafter: the Ministry) within eight days from the date of receipt of tender results notification.
The Ministry decides on the objection within eight days from the day of receipt of such objection.
Article 26
The Agency shall keep in its archive the tender dossiers for the period of at least three years from the date of execution of contract.
Article 27
The present Decree shall come into force on the next day following the day of publication in the "Official Herald of the Republic of Serbia".
Independent Articles of the Decree on Amending
the Decree on Sale of Capital and Property by Public Tender
("Official Herald of the Republic of Serbia", No. 59/2003)
Article 19
The procedure of sale of socially-owned and state-owned capital of the entity of privatization by public tender method, that has been in course on the day of coming into force of the present Decree, shall be completed pursuant to provisions that were in force on the day of making the public announcement for taking part in the tender.
Article 20
The present Decree shall come into force on the next day following the day of publication in the "Official Herald of the Republic of Serbia".
Independent Articles of the Decree on Amending
the Decree on Sale of Capital and Property by Public Tender
("Official Herald of the RS", No. 52/2005)
Article 9
Procedures of sale of socially-owned and state-owned capital of the entity to be privatized by public tender method, instituted until the day of coming into force of the present Decree, shall be completed pursuant to regulations that were in force on the day of announcing the public invitation for taking part in the tender.
Article 10
The present Decree shall come into force on the eighth day following the day of publication in the "Official Herald of the Republic of Serbia".
Independent Articles of the Decree on Amending
the Decree on Sale of Capital and Property by Public Tender
("Official Herald of the RS", No. 126/2007)
Article 10
The procedure of sale of capital and property by applying the public tender method initiated until the day of entering into force of the present Decree, shall be completed pursuant to provisions of the present Decree.
Negotiations with a single tender participant initiated until the day of entering into force of the present Decree shall be completed in conformity with regulations which were in force on the date of rendering the decision of the Commission on initiating these negotiations.
Article 11
The present Decree shall enter into force on the day following the day of publication in the "Official Herald of the Republic of Serbia".
Independent Articles of the Decree Amending
the Decree on Sale of Capital and Property by Public Tender
("Official Herald of the Republic of Serbia", No. 96/2008)
Article 11
The provision on the mode of appointing of Commission members shall apply to the already initiated proceedings of sale of capital and property by public tender for which the Commission is not established until the date of entering into force of the present Decree.
Article 12
The provisions of the present Decree shall apply to the proceedings of sale of socially- and state-owned capital and/or property of privatization entities for which the deadline for submitting bids has not expired until the date of entering into force of the present Decree.
Article 13
The present Decree shall enter into force on the day following the day of publication in the "Official Herald of the Republic of Serbia".
Independent Articles of the Decree Amending
the Decree on Sale of Capital and Property by Public Tender
("Official Herald of the Republic of Serbia", No. 107/2008)
Article 2
The provisions of the present Decree shall apply to the already initiated proceedings of sale of capital and property by public tender for which the Commission is not established until the date of coming into force of the present Decree.
Article 3
The present Decree shall enter into force on the day following the day of publication in the "Official Herald of the Republic of Serbia".