PUBLIC PROCUREMENT LAW("Official Herald of the Republic of Serbia", No. 39/2002, 43/2003 - the other Law, 55/2004 and 101/2005 - the other Law) |
Scope of regulation
Article 1
This Law shall regulate: the conditions, the manner and the procedure of procurement of goods and services, including the awarding of work assignments when the entity ordering such goods and services is a state agency, organization, institution or some other legal entity specified by this Law, the manner of recording contracts and other information concerning public procurement, as well as the manner of protecting the rights of the bidders, the establishment of the Office of Public Procurement as an organization authorized to deal professionally with tasks pertaining to public procurement; and other matters relevant to public procurement.
Kinds of public procurement exempt from this Law
Article 2
The provisions of this Law shall not apply to the following kinds of public procurement:
1) from organizations which in terms of this Law are considered to be orderers and have been established for the purpose of providing services that are the object of public procurement;
2) on the ground of an international agreement relating to supplying goods, performing work, providing services or public tenders for design, and stipulating joint implementation or exploitation of a project on the part of the states or organizations having concluded it;
3) aimed at providing elementary living conditions following natural disasters, other accidents or damage, in accordance with the regulations on the protection from such disasters, accidents or damage;
4) relating to armaments and other confidential forms of procurement regulated by special regulations.
5) goods procured by the orderer for resale or providing services to third parties, on condition that the orderer has no exclusive or special resale rights or rights of renting these goods and/or rendering services for which he intends to use these goods.
An orderer of public procurement referred to in paragraph 1 items 4 and 5 of this Article shall notify the Office of Public Procurement of procurement plans for the current year by January 31st at the latest.
The meaning of terms
Article 3
The terms applied in this Law shall have the following meaning:
1) the term orderer shall denote:
(a) a state agency, organization, institution or another direct or indirect beneficiary of the budget in accordance with the provisions of the laws regulating the budget system, as well as an organization in charge of compulsory social insurance;
(b) a legal entity established by a direct or an indirect beneficiary of the budget with a view to performing activities in the general (public) interest, provided that more than one half of the members of the management of the said entity be representatives of the budget beneficiary or that more than one half of the votes in the managing body of the said entity belong to representatives of the budget beneficiary;
(c) a public company or a company established by a public company wherein a direct or an indirect beneficiary of the budget, that is, an orderer in accordance with the provisions of this Law, owns more than 50% of the shares;
(d) another type of enterprise connected with the agencies, organizations and/or legal entities referred to in item 1, subitems (a)-(c) of this Article through the management or in some other way, so that on the ground of such connection:
- they jointly decide on the business policy and act in coordination for the purpose of realizing business objectives, or
- the agency, organization or legal entity referred to in item 1, subitems (a)-(c) of this Article exerts significant influence on the policy decisions, financing and business activity of such enterprise;
2) the term public procurement shall denote obtaining goods and services or awarding work assignments on the part of a state agency, organization, institution or some other legal entity considered to be an orderer in accordance with the provisions of this Law, in the manner and under the conditions prescribed by this Law;
3) the term public procurement contract shall denote a written contract concluded following the procedure specified by this Law between an orderer and a provider of goods, services or work, concerning the procurement o! goods, providing services of performing work assignments;
4) the term bidder shall denote a domestic or foreign legal or natural person offering to supply goods, provide services of perform work assignments;
5) the term candidate shall denote a person invited by an orderer to make a bid after that person's qualifications have been established;
6) the term open procedure shall denote a procedure wherein all the interested parties may submit their bids;
7) the term restrictive procedure shall denote a procedure wherein only those bidders invited by the orderer after their qualifications have been established as candidates may submit their bids;
8) the term negotiatory procedure shall denote a procedure wherein the orderer negotiates the choice of contractors and the conditions of the contract with the providers of goods, services or work;
9) the term tender for design shall denote a procedure used for concluding a contract of urban planning, architectural and civil engineering design, engineering, design or informatics services, whereby the design shall be chosen by a jury established in advance;
10) the term price offered shall denote the price determined by a bidder in connection with public procurement, expressed in Yugoslav dinars; which price, where public procurement includes imported goods, shall encompass the custom duty and other import duties;
11) the term unconventionally low price shall denote an offered price which is so low that it makes the orderer doubt that public procurement will be effected;
12) the term criterion shall denote an element used for evaluating, comparing or judging bids;
13) the term requirement shall denote an exclusive element that has to be complied with in its entirety, in the manner prescribed by the documents pertaining to the tender in question;
14) the term qualification requirement shall denote a requirement contained in the documents pertaining to a public procurement tender that is essential for the implementation of the tender, which has to be complied with in its entirety because it constitutes a prerequisite for ascertaining bidder's ability;
15) the term qualification procedure shall denote the manner of conducting the first phase of the restrictive procedure applied in negotiating a contract of public procurement in the sphere of waterworks, energy production, telecommunications and transport;
16) the term request for participation shall denote an application submitted to the orderer by any interested person in the course of qualification procedure;
17) the term updating the criteria and conditions shall denote periodical adjustment effected by the orderer in the course of qualification procedure, considering market conditions, development and other circumstances;
18) the term timely bid shall denote a bid submitted to the orderer meeting the deadline specified in a tender for public procurement;
19) the term correct bid shall denote a bid submitted on time, for which it has been established, following the opening, examination and evaluation of the bids, that it fully complies with the requirements contained in the tender documentation;
20) the term adequate bid shall denote a bid submitted on time, for which it has been established, following the opening, examination and evaluation of the bids, that it fully complies with all the technical specifications;
21) the term acceptable bid shall denote a bid submitted on time, for which it has been established, following the opening, examination and evaluation of the bids, that it fully complies with all the criteria, conditions and potential qualification requirements;
22) the term reduced offered price shall denote the method of determining the price that a bidder may offer only when a contract is awarded per individual lots and the orderer cannot consider this method an element warranting an additional privilege;
23) the term goods shall denote movable and immovable objects, products and equipment, electric power, raw materials and reproductive materials in solid, liquid and gaseous state;
24) the term public funds shall denote funds controlled by and at the disposalmous territorial unit, local government and compulsory social insurance organization.
List of orderers
Article 4
(Deleted)
3. Principles of public procurement
The principle of economy and efficiency of use of public funds
Article 5
The orderer shall be obliged to ensure that the public procurement procedure is conducted and the choice of bidders made within the deadlines and in the manner prescribed by this Law, incurring as little costs as possible in the realization of public procurement.
The principle of ensuring competition among the bidders
Article 6
The orderer may not limit competition among the bidders and particularly may not prevent any bidder from participating by unwarranted use of the restrictive procedure or by using discriminatory criteria.
Persons who have been engaged in preparing the tender documentation or parts thereof may not appear in the role of bidders or subcontractors, nor may they cooperate with the bidders in the course of preparing their bids.
The orderer may not request that a bidder should engage the servce of a particular contractor or engage in any other transaction, such as exporting certain goods or services unless otherwise stipulated by a special law or international agreement or unless it is specified in the tender documentation that the orderer has to engage the services of a certain number of domestic subcontractors or include a certain quantity or value of domestic goods and services.
The principle of transparency of use of public funds
Article 7
Public funds may be used only for the purposes determined by a contract concluded in the public procurement procedure.
A public tender for public procurement shall be published in "The Official Herald of the Republic of Serbia", and if the value of the public procurement exceeds the amount of 3,000,000 dinars in case of goods and services, and/or 15,000,000 dinars in case of works, the public tender shall be announced in one daily paper as well, that is distributed in the entire territory of the Republic.
A person who has participated in the public procurement procedure shall have the right to gain access to the information concerning the public procurement procedure conducted in accordance with this Law.
The principle of the equality of bidders
Article 8
The orderer may not impose conditions that would constitute territorial, subject or personal discrimination of the bidders, or discrimination arising out of the classification of work performed by the bidder.
Stipulation of the origin of goods or services under the circumstances and for the purposes provided for by special regulations shall be allowed.
The orderer may not exclude any bids merely because the bidder's legal residence is located in a state with which Yugoslavia has not concluded an agreement on the equal treatment of domestic and foreign bidders.
4. Protection of data and documentation, and keeping records of procedures
Protection of data
Article 9
The orderer shall keep as confidential all the data on the bidders contained in the bid that are designated as confidential by a special act.
The orderer may refuse to disclose information that would entail a breach of confidentiality of data received in the bidding procedure.
The orderer shall keep the names of bidders and their bids as a business secret until the expiry of the deadline for the opening of the bids.
Determining what is confidential
Article 10
In the course of submitting technical specifications concerning the awarding of public procurement contracts to the bidders, the orderer may demand that the confidentiality of information being placed at their disposal be protected.
A person who has received data designated as confidential shall be obliged to observe their confidentiality irrespective of the degree of confidentiality stipulated.
Documentation and keeping records of the procedure
Article 11
The orderer shall keep records of all the phases of the procedure of awarding public procurement contracts.
The orderer shall keep all the documentation pertaining to public procurement in accordance with the regulations concerning the area of documentation and archives.
The orderer shall keep records of public procurement contracts awarded in negotiatory procedures.
Keeping documentation records
Article 12
If the period stipulated for keeping the documentation in accordance with the provisions of Article 11 paragraph 2 of this Law expires before the deadline stipulated for the execution of a public procurement contract, the orderer shall be obliged to keep the documentation for a period of three years following the expiry of the deadline for executing that contract.
5. Language in public procurement procedure
Article 13
The orderer shall prepare the tender documentation and conduct the procedure in the Serbian language.
The tender documentation for public procurement of goods and services exceeding 12,000,000 Yugoslav dinars and/or for work assignments exceeding 120,000,000 Yugoslav dinars shall be prepared by the orderer also in a foreign language commonly used in international commerce.
A bidder shall submit his bid in the language used in the tender documentation and/or in the language specified by the orderer in the tender documentation.
Article 14
The orderer may allow that bids, whether in their entirety or in part, be submitted in a foreign language, particularly in the section pertaining to technical characteristics, quality and technical documentation.
In the case referred to in paragraph 1 of this Article, the orderer shall be obliged to indicate which part of a bid may be submitted in a foreign language and which foreign language it is to be submitted in.
If, in the course of the examination and evaluation of the bids, the orderer establishes that part of a bid should be translated into the Serbian language, he shall set a deadline to the bidder for translating the said part of the bid into Serbian.
In case of conflict, the Serbian version of the tender documentation and/or the bid shall be relevant.
Article 15
The values in the tender documentation and the bids shall be expressed in Yugoslav dinars.
The orderer may demand of a bidder to indicate the values in a foreign currency, in which case it shall be stated that the values shall be converted into Yugoslav dinars using the medium exchange rate of the National Bank of Serbia in effect on the day of the opening of the bids.
Article 16
If a bidder has been allowed to submit a bid in a foreign currency in the case specified in Article 15, paragraph 2 of this Law, the orderer shall be obliged to state the currency which can be used to indicate the values referred to in the bid in the tender documentation.
Article 17
The orderer shall reject a bid after obtaining reliable evidence that the bidder has given or promised a current or former employee of the orderer a gift, be it a gift in money or a non-monetary one, or that the bidder offered employment or any other benefit that may be expressed in terms of money, in an attempt to influence the procedure, decision making or the subsequent course of the public procurement procedure.
The orderer shall be obliged to inform, in writing, the bidder referred to in paragraph 1 of this Article, as well as the Office of Public Procurement, that the bid in question has been rejected and of the reasons for rejection, and to enter this fact into the documentation relating to the public procurement procedure.
II OFFICE OF PUBLIC PROCUREMENT
Form of establishment
Article 18
The Office of Public Procurement (hereinafter: the Office) shall be established as a special organization for performing expert work in the sphere of public procurement, in order to ensure that proper conditions exist for economic, efficient and transparent use of public funds for the purpose of public procurement and to promote competition among and the equality of bidders in the public procurement procedure.
The regulations pertaining to the state administration shall apply to the work and organization of the Office.
Work
Article 19
The Office shall perform work relating to:
1) the drafting of regulations pertaining to the sphere of public procurement;
2) providing consulting services to orderers and bidders;
3) agencyizing staff training for work in the sphere of public procurement;
4) cooperation with foreign institutions and experts in the sphere of public procurement;
5) the publication and distribution of relevant professional literature;
6) preparing samples of the tender documentation and contracts for typical forms of public procurement;
7) collecting information on public procurement in other states;
8) systematic collecting of information from bidders and keeping records of data in the sphere of public procurement;
9) the preparation of and participation in determining the criteria for calculating various kinds of expenses incurred by public funds beneficiaries;
10) the preparation of a common database for keeping a record of bidders and their creditworthiness, on the basis of concluded and executed contracts of public procurement;
11) monitoring the public procurement procedure;
12) cooperation with other state agencies, organizations, compulsory social insurance organizations, as well as agencies of autonomous territorial units and local government;
12a) submitting the requests for protecting the public interest.
13) other work in accordance with the law.
Once a year the Office shall submit to the Government a report on public procurement in the previous year, together with a proposal for measures to be taken.
III THE PROCEDURE AND MODE OF AWARDING CONTRACTS OF PUBLIC PROCUREMENT
1. The procedure for awarding contracts of public procurement
Types of procedure
Article 20
The awarding of public procurement contracts shall be effected by applyrng the open procedure.
The awarding of public procurement contracts may be effected also by applying the restrictive procedure or the negotiatory procedure.
Awarding contracts in the open procedure
Article 21
The open procedure shall be a procedure wherein all the parties interested in obtaining a contract of public procurement may submit their bids in accordance with previously defined requirements of the orderer specified in the tender documentation.
Awarding contracts in the restrictive procedure
Article 22
The restrictive procedure shall be a procedure in the first phase of which the orderer recognises the qualifications of the bidders on the ground of previously determined qualification requirements, whereas in the second phase the orderer invites all the bidders whose qualifications have been recognised to submit their bids.
The orderer may apply the restrictive procedure only where the object of public procurement are such goods, services or construction work that, in view of the technical, staff and financial ability required, may be delivered, provided or performed only by a small number of bidders.
Prior to announcing the public tender for the first phase of the restrictive procedure, the orderer shall obtain the opinion of the Office, which shall be obliged to forward its opinion within seven days of having received the orderer's request.
Should the Office fail to submit its opinion within the deadline specified in paragraph 3 of this Article, the orderer may proceed with the public procurement procedure.
The orderer may apply the first phase of the restrictive procedure also where it is not possible to plan public procurement in advance, in view of its scope and the time required, and where it can not be realized immediately and is not realized in accordance with special requirements of the orderer but according to the market conditions.
Awarding contracts in the negotiatory procedure without previous announcement and after such announcement
Article 23
The orderer may award a contract in the negotiatory procedure without the previous announcement if:
1) due to objective circumstances or for reasons to do with protecting exclusive rights, public procurement may be effected only by specific providers of goods or services, or performers of work assignment;
2) due to urgent and/or unforeseen circumstances, whose taking place is independent of orderer's will, he was unable to observe the deadlines determined for the open and the restrictive procedure.
3) in the open or restrictive procedure he did not receive any bid or all the bids have been inadequate.
In the case referred to in paragraph 1, item 1 of this Article, the orderer shall request the opinion of the Office.
The Office shall be obliged to forward its opinion within seven days of having received the orderer's request.
The orderer shall forward to the Office, within three days from the day of selecting the most favourable bid, a report on awarding the public procurement contract referred to in paragraph 1 items 2 and 3 of the present Article that shall include date specified in Article 81 of this Law.
Should the Office fail to forward its opinion within the deadline specified in paragraph 3 of this Article, the orderer may proceed with the public procurement procedure.
The orderer may award a contract in the negotiatory procedure after the previous announcement if he receives in the open or restrictive procedure all the incorrect or inacceptable bids, on condition that the content of the tender documentation is not changed. Should the orderer invite to the negotiatory procedure, after previous anouncement, all the bidders who have taken place in the open or the restrictive procedure, to submit new bids, he shall not be obliged to announce the public tender for collecting the bids..
The orderer shall be obliged to ensure that in the course of negotiations the price does not exceed the comparable market price, and to check the quality of the object of public procurement with due caution.
2. Commencement of the procedure
Conditions for the commencement of the procedure
Article 24
The orderer may commence the public procurement procedure if the procurement is envisaged by the procurement plan and if funds for that particular procurement have been set aside in the budget of the Republic of Serbia (hereinafter: the Republic Budget), an autonomous territorial unit, local government or in the financial plan in accordance with the Law on the Budget System.
The funds set aside for a particular public procurement may not exceed the amount stipulated by the regulations pertaining to budget spending and public financing.
If the conduct of public procurement procedure lasts several years, the obligations that become due in the years to come shall be negotiated and expressed in the amounts stipulated by the regulations pertaining to budget spending for each year separately.
It the public procurement in question concerns investments, the orderer shall prepare the investment program according to the unified methodology for preparing investment programs, and in accordance with the development plan.
The program referred to in paragraph 4 of this Article shall be certified by the chief executive officer of the orderer in writing.
If the Republic Budget, the budget of an autonomous territorial unit, the budget of a local government or the financial plan of another orderer have not been passed, the orderer may commence the public procurement procedure only up to the amount of the funds planned in accordance with the regulations dealing with temporary financing.
Decision on the commencement of the procedure
Article 25
The orderer shall commence the public procurement procedure by passing a written decision which contains:
1) the registry number of the public procurement for the current year;
2) the object of public procurement;
3) the value of public procurement according to orderer's estimates and the expectations concerning the bids;
4) the data on the decision on allowing public procurement of investments, in accordance with the unified methodology, when necessary;
5) provisional dates for the implementation of the individual phases of the public procurement procedure and
6) the budget position data and/or data in the financial plan for payment.
The decision may contain other elements should the orderer consider them necessary for the implementation of the public procurement procedure.
Parallel with the passing of the decision on commencing the public procurement procedure, the orderer shall establish a committee for public procurement, in accordance with the regulation criteria for the establishment of such committees.
Acting upon the proposal of the Minister of Finance and the Economy, the Government shall establish the criteria for establishing public procurement committees.
Implementation of a public procurement procedure by another legal entity
Article 26
The orderer may authorize another legal entity in writing to apply the procedure of awarding public procurement contracts on his behalf and for his account.
In the procedure of awarding public procurement contracts in the sphere of waterworks, energy production, telecommunications and transport, the orderer may decide to use the list of qualified bidders of another orderer.
The decision on using the list of qualified bidders of another orderer shall be made in writing and has to include an assignment of reasons.
3. The content of the tender documentation
Preparation of the tender documentation
Article 27
The orderer shall prepare the tender documentation so that the bidders may prepare correct bids on the ground of such documentation.
The data contained in the tender documentation have to be identical to the data contained in the public invitation for bids.
The tender documentation for the open procedure and for the second phase of the restrictive procedure shall contain:
1) an invitation for bids;
2) instructions to bidders on the mode of preparing a bid;
3) a bid form;
4) a form for establishing qualifications and instructions for proving bidder's qualifications (only in the case of an open procedure);
5) a form of a statement that the bidder accepts the conditions in the public invitation for bids and tender documentation;
6) a sample contract;
7) the type, technical characteristics (specifications), quality, quantity and description of goods, services or work, the manner of executing control and ensuring a guarantee of quality, the deadline for executing the contract, the place of execution or of the delivery of goods, additional services, if any, and the like;
8) the technical documentation and plans;
9) the invoice form, including instructions for filling it out; and
10) the indication of the type of financial security instruments whereby the bidders ensure the fulfillment of their obligations in the procedure of awarding contracts of public procurement (various forms of pledging securities, or other movable property, mortgages, bills of exchange, guarantees given by other legal entities possessing adequate creditworthiness, bank guarantees, insurance policies, etc.).
The tender documentation may contain other elements as well which, in view of the object of public procurement, are necessary for the preparation of a bid.
The tender documentation in the first phase of the restrictive procedure shall contain:
1) an invitation to submit bids;
2) instructions to the bidders on the mode of preparing their bids;
3) a bid form and
4) a form for establishing the qualifications, and instructions for proving bidder's qualifications.
The Minister of Finance and Economy shall regulate in detail the compulsory elements of the tender documentation.
The law regulating the annual Republic Budget shall stipulate the amount of public procurement funds above which the orderer shall demand a bank guarantee in the public procurement procedure.
4. Access to the tender documentation
Deadline for submitting the tender documentation
Article 28
As of the day of announcing the invitation for bids, the orderer shall enable interested parties to have direct access to the tender documentation or shall forward the documentation by post, telefax or e-mail within two days of having received a request from a bidder.
In the case referred to in paragraph 1 of this Article, the orderer shall charge only the costs of copying and forwarding the tender documentation.
In the open procedure the orderer may limit the period of time during which the bidders may request access to the tender documentation; this period shall not be shorter than one half of the period for submitting the bids.
The bidder may not set a higher price afterwards, claiming that the tender documentation is incomplete or inadequate concerning the segments of public procurement execution that were not specified in the tender documentation if these segments could have been predicted considering the object of public procurement and the documentation in its entirety.
Alterations of and additions to the tender documentation
Article 29
Should the orderer make alterations or additions to the tender documentation before the expiry of the deadline for submitting the bids, he shall be obliged to forward these alterations and additions immediately and free of charge to the bidders who have already taken the tender documentation.
A bidder may request in written additional information or explanations concerning the preparation of bids five days before the expiry of the deadline for submitting the bids at the latest.
In the case referred to in paragraph 2 of this Article, the orderer shall be obliged to forward a written answer to the bidder within the time period and in the manner stipulated in Article 28 paragraph 1 of this Law, and at the same time to forward that information to all the other bidders who have received the tender documentation.
If the tender documentation or the additional documents are too extensive, or if a bid can only be made after a direct inspection of the place where public procurement will be effected, or if the orderer alters or adds to the tender documentation six or fewer days before the expiry of the deadline for submitting the bids, the orderer shall be obliged to extend the deadline for submitting the bids.
The orderer shall inform in writing all the bidders who have been forwarded the tender documentation of the extension of the deadline for submitting the bids referred to in paragraph 4 of this Article.
The decision on extending the deadline for submitting the bids shall be announced in the same way as the invitation for bids.
After the expiry of the deadline for submitting the bids, the orderer may not alter or add to the tender documentation.
5. Determining the value of public procurement
Determining the value of public procurement of goods
Article 30
The basis for calculating the estimated value of public procurement of goods shall be determined in the following manner:
1) where the object of the contract is buying, selling, renting or leasing goods, and when the contract is concluded for a period of 12 months or less, the total value of the contract throughout its duration shall be taken; where the contract is concluded for a period longer than 12 months, the total value of the contract shall include the value for the first 12 months and the value for the period remaining until the expiry of the deadline stipulated in it;
2) where the contract referred to in paragraph 1 item 1 of this Article is concluded for an indefinite period of time, the monthly value of the contract multiplied by 48 shall be used.
Should the contract be concluded for an indefinite period of time or if it has to be renewed after a certain period of time, the estimated value of public procurement shall be determined on the ground of the real total value of similar contracts concluded in the course of the previous budget year or in the course of the previous 12 months, adjusted for the expected changes concerning the quantity or the value of the goods whose procurement is the object of the contract in the course of 12 months, counting from the day of the original conclusion of the contract.
Determining the value of public procurement of services
Article 31
In calculating the estimated value of public procurement of services, the orderer shall include all the expenses concerning the service in question incurred by the bidder.
In the case of some services, the orderer shall consider the following amounts:
1) for insurance services - the amount of the premium;
2) for banking and financial services - recompense, commission and interest rates, as well as other payments charged to the service;
3) for architectural services, industrial design, urban and landscape planning and the like - recompense or commission.
If the orderer is unable to estimate the value of the contract due to the length of its duration, the value of the contract shall be determined in the manner specified in Article 30, paragraph 1 of this Law.
Determining the value of public procurement of work
Article 32
The total value of public procurement of work shall be determined by taking the total construction values as the ground for calculating the value of the contract of work.
In determining the value of public procurement of construction work, the orderer shall include the value of all the goods and services that are indispensable for the execution of the public procurement contract.
The value of public procurement of construction work may not include the value of goods and services that are not indispensable for the execution of public procurement of construction work.
Determining the value of public procurement per lot
Article 33
The object of public procurement may be expressed in a number of separate wholes (lots), so that each lot may be negotiated separately.
Where the object of public procurement is expressed in separate lots, and each lot is the subject of a separate contract, when determining the value of this public procurement, the value of all the lots over a period of one year, counting from the day of negotiating the first lot, is taken into consideration.
The orderer shall be obliged to award individual lots whose total value exceeds the amounts specifed in Articles 69, 71, 90, 114 and 123 of this Law, in accordance with the provisions of this Law.
For the decision on expressing public procurement in lots and on determining the values of these lots the orderer shall have to obtain an approval by the Office.
The mode of determining the value of public procurement
Article 34
The orderer may not choose the mode of determining the value of public procurement so as to avoid, due to a lower estimated value, a public invitation for bids.
The estimated value of public procurement shall be expressed without including the turnover tax.
6. General rules on determining the technical elements of public procurement
Technical specifications
Article 35
Technical specifications constitute an obligatory part of the tender documentation.
The orderer shall be obliged to provide the technical specifications in the tender documentation pertaining to each individual contract of public procurement.
The orderer shall determine the technical specifications referring to the laws, technical regulations and standards that are in effect in the Republic; where such technical regulations and standards do not exist in the Republic, the orderer shall refer to the existing European standards, technical licenses or common technical specifications.
The ministry in charge shall establish whether the technical regulations and standards referred to in paragraph 3 of this Article exist.
The use of technical specifications
Article 36
The orderer may not use or refer to technical specifications concerning goods, services or work of particular type of production, origin or construction, if such a designation might give a bidder an undue advantage or might unwarrantedly eliminate the other bidders.
The orderer may not include in the tender documentation any provision that would result in giving an undue advantage or eliminating some bidders, in the manner referred to in paragraph 1 of this Article, unless such a specification is warranted in view of the subject of the contract.
The orderer may not specify in the tender documentation any particular trademark, patent or type, or special origin or manufacturer.
Where it is not possible to describe the subject of the contract in the tender documentation in such a way that the specifications will be comprehensible to all the bidders, the orderer must specify elements like trademarks, patents, type or manufacture using the words "or equivalent".
Issuing attestations
Article 37
When the orderer negotiating a service demands an attest of meeting the requirements concerning the quality of management and the quality of services provided issued by independent agencies or organizations, which should confirm that the services meet specific standards, the authorized issuer of the attestation shall refer to the system of quality guarantees in accordance with the Yugoslav JUS EN ISO 9000 series standard, fulfilling the requirements of the Yugoslav standards JUS EN 45000 and JUS ISO/IEC 17025.
The content of technical specifications or project documentation
Article 38
The terms technical specifications and project documentation, as used in this Law, shall denote the technical requirements constituting an obligatory part of the tender documentation referring to the characteristics of lots of work assignments, materials, products, goods or services. They have to ensure that the work assignments, materials, products, goods or services being procured are described in a manner that is impartial and that meets orderer's demands.
Technical specifications may contain requirements concerning the quality, performance, safety or dimensions of materials, products, goods, or services, which concern the guarantees of quality, terminology, designations, testing and the methods of testing, packing, marking and labeling.
In the case of public procurement of construction work, technical specifications may include regulations concerning designs and the calculation of costs, testing, inspection, and conditions for taking over the finished product, and the technique or method of construction.
Exceptions
Article 39
Subject to the prior approval of the Office, the orderer need not adhere to the provisions of Article 35 of this Law under the following circumstances:
1) if the standards, technical approval or the general technical specifications or project documentation do not contain a provision requiring adjustment, and/or if there are no technical means of satisfactory adjustment of the product or service to these standards, technical approval or general technical specifications and/or project documentation;
2) if adherence would prejudice mutual recognition of standard-type approval of telecommunications or computer equipment, or standardization in the sphere of information technology and telecommunications, or in other specific areas of goods and services;
3) if adherence to the standards, technical approval or general technical specifications would put the orderer in a position of having to procure goods that are incompatible with the existing equipment, or would result in disproportionately higher costs or would cause excessive technical difficulties for the orderer;
4) if the specific contract of public procurement is of a markedly innovative character, so that adherence to standards, technical approval or general technical specifications would not be appropriate.
The orderer shall state the reasons for acting in the manner referred to in paragraph 1 of this Article in the invitation for bids or in the tender documentation.
Other ways of determining technical specifications
Article 40
If no standards, technical approval or general technical specifications exist, technical specifications may be determined in the following way:
1) in accordance with the technical specifications that apply in the FR of Yugoslavia and which are in compliance with the basic requirements that are applied for technical harmonization in the European Union (especially in the case of public procurement in the sphere of information technology, telecommunications and the like);
2) in accordance with the technical specifications that apply in the FR of Yugoslavia pertaining to the drafting of design, method of calculation, work assignment performance and the use of materials;
3) in accordance with other documents, in which case the orderer shall adhere to the following order of criteria when deciding on:
(a) the Yugoslav standard JUS which is an international standard that has been taken over;
(b) some other national standard;
(c) the technical approval and recommendation being applied in the FR of Yugoslavia.
Standards
Article 41
The term Yugoslav standard shall denote a standard recognized by the federal agency in charge of standardization that is accessible to the public.
The term international standard shall denote a standard recognized by a foreign organization for standards, and/or an international standardization organization, that is accessible to the public.
The term European standard shall denote a standard recognized by a competent agency of the European Union, that is accessible to the public.
The term foreign national standard shall denote a standard recognized by a competent agency of a foreign state that is available to the public.
The term other standards shall denote standards that may be accepted for other reasons (e.g. standards applicable to a particular branch of industry, company standards and the like).
Technical approval
Article 42
Technical approval is a positive technical evaluation of the suitability of a particular product for the intended use.
European technical approval is a positive technical evaluation of the suitability of a particular product for the intended use, based on the fulfillment of the basic requirements of the intended construction work, issued by the agency in charge of issuing technical approvals.
European technical approval shall apply in the case of public procurement of construction work.
Common technical specifications
Article 43
Common technical specification is a technical specification passed in accordance with the procedure accepted by the Government, which is applied by all the member states of the European Union.
Indication of essential requirements and costs of patent recompense
Article 44
Essential requirements that are not included in the technical norms and standards currently in effect, and which pertain to safety and other factors of general interest, shall apply and shall be expressly indicated in the tender documentation.
The orderer may indicate in the tender documentation that patent recompense and responsibility for any breach of protected intellectual property rights of third persons shall be borne by the bidder.
7. Requirements for participating in the procedure of awarding contracts of public procurement
Obligatory requirements for participation
Article 45
The orderer shall announce the requirements that the bidder has to fulfill in order to be able to participate in the procedure.
The following domestic or foreign natural person shall have the right to participate in the procedure if:
1) registered for a particular activitiy with the competent agency;
2) within a two year period prior to announcing the public tender he has not been punished for a criminal offence or an infraction in the area relating to the object of puiblic procurement;
3) he has settled for the current year due taxes, contributions and other forms of public taxation in accordance with the regulations of the Republic of Serbia and/or in accordance with the regulations of the Republic of Montenegro or a foreign state if his legal residence is located on its territory;
The following domestic or foreign legal entity shall have the right to participate in the procedure if:
1) it is filed in the register with the competent agency for performing a corresponding activity;
2) in the two year prior to announcing the public tender it was not convicted by a finally binding court judgment or administrative measure prohibiting it to perform the activity which is the object of public procurement;
3) it has settled for the current year due taxes, contributions and other forms of public taxation in accordance with the regulations of the Republic of Serbia and/or the Republic of Montenegro or a foreign state if its legal residence is located on its territory;
4) it has a valid permit issued by the competent agency for performing the activity which is the object of public procurement, where such permit is required by special regulations;
5) it possesses necessary financial and business capacity;
6) it possesses sufficient technical capacity.
The orderer may determine additional requirements concerning the fulfillment of obligations that the bidder has towards his subcontractors and suppliers.
Proving the fulfillment of requirements
Article 46
The bidder shall enclose to the bid the following evidence to prove that he fulfils the requirements referred to in Article 45 of this Law:
1) a court register certificate or some other register certificate;
2) a certificate issued by the competent tax agency of the state where the bidder's legal residence is located, or by the competent tax agency of the Republic of Montenegro, or by the Republic Office of Public Revenues;
3) a certificate issued by the competent agency keeping records of permits issued for performing specific activities;
4) a balance sheet certified by an authorized auditor, or an excerpt from the balance sheet, or a certificate of the bidder's overall sales income and income obtained from the products, work or services that the public procurement contract pertains to - for the last three accounting years, as well as the finding or statements of a bank or another specialized institution, or the proof required in the public invitation or the tender documentation. The orderer shall be obliged to state in the public invitation or in the tender documentation which element from this item he has chosen and which other elements serving to prove the financial and business capacity the bidder should submit;
5) one or more pieces of evidence in accordance with the subject of the contract, the quantity and the intended purpose, such as:
(a) a list of the most important goods delivered, work assignments performed or services provided over a period of the last three years, together with the amounts, dates, and lists of buyers or orderers. If the buyers or orderers are entities that are considered to be orderers in accordance with the provisions of this Law, the proof to be submitted has to be in the form of a certificate issued or signed by the competent agency; if the buyers and/or orderers are entities or entrepreneurs other than orderers in the sense of the provisions of this Law, the certificate shall be issued or signed by a buyer and/or an orderer;
(b) a description of bidder's technical equipment, measures for ensuring quality and the capacity for research and development;
(c) a statement on the key technical staff and other experts working for the bidder who will be responsible for the execution of the contract and on the persons responsible for quality control;
(d) a sample description or a photograph of the product and a description of the work or services that the bidder will provide. In case of doubt, the orderer may demand proof of the authenticity of samples, descriptions or photographs;
(e) a certificate issued by the agencies or organizations authorized for quality control, testifying that the products or services are in conformity with the technical specifications or standards required in the tender documentation;
(f) a report on checking, if the products to be delivered or the work and services to be provided are complex, or in exceptional circumstances, where the object of public procurement is to be used for special purposes. The checking shall be conducted by representatives of the orderer or, on behalf of the orderer, by the competent agency of the state where the legal residence of the bidder is located. The checking shall pertain to the bidder's production capacity, and if need be, to his capacity for research and development, and the mode of ensuring quality.
The evidence referred to in paragraph 1 of this Aarticle may not be older than six months counting from the day of announcing the public tender.
If the bidder's legal residence is located in another state or in the Republic of Montenegro, the orderer shall check whether the documents with which the bidder proves that he fulfils the requirements of the tender have been issued by the compeent agency of the state in question or the Republic of Montenegro.
If the bidder's residence is in a foreign state, the documentation for proving the requirements has to be certified by the competent agency of the state of bidder's legal residence (administrative or judicial agency and/or chamber of commerce) and/or embassy of such a state in Serbia and Montenegro.
The bidder shall be obliged to forward without delay the notification to the orderer, in writing, and within a five day time limit from the day of a change taking place in any of the data, at the latest, of any such change; together with the corresponding documentation, as prescribed.
The bidder shall ensure that his subcontractors, if they are indicated in the bid, also comply with the requirements referred to in Article 45 of this Law; and the proof of this shall be documented in the manner referred to in paragraph 1 of this Article.
The bidder shall be obliged to indicate in the bid wheter the bid refers to the entire procurement or to particular lots thereof only.
If the bidder submits a bid referring to all the lots, it must be submitted in such a way that it may be evaluated separately for each lot.
Professional references and the confidentiality of the data obtained
Article 47
If the orderer requests that the bidders should submit professional references, he shall be obliged to expressly indicate in the public invitation for bids or in the tender documentation which professional references the bidders have to obtain.
The orderer shall be obliged to duly respect the lawful interests of the bidders, and to protect their technical or business secrets.
The orderer may use the data obtained only for the purpose of that particular public procurement contract.
The bidder shall be responsible for the authenticity of the professional references referred to in paragraph 1 of this Article.
Bidder's statement
Article 48
If the competent agencys of the state or the republic where the legal residence of the bidder is located do not issue the certificate referred to in Article 46, paragraph 1 item 2 of this Law, the bidder may submit a written statement instead, certified by the competent agency of the state or republic where his legal residence is located, taking full criminal and material responsibility for it.
Establishing qualifications
Article 49
Before concluding a contract of public procurement, the orderer shall be obliged to check whether the bidder meets the requirements concerning his business and financial capacity stipulated in Article 45, paragraph 3 item 5 of this Law.
The orderer shall be obliged to conclude the contract of public procurement observing the requirements for establishing qualifications pertaining to the financial, staff and technical capacity of the bidder for executing the public procurement contract.
The orderer may define additional requirements for establishing bidder's qualifications, provided these do not discriminate against other bidders.
Establishing the qualifications of subcontractors
Article 50
When establishing the qualifications for executing a public procurement contract, the orderer may request that the bidder should indicate whether he will entrust the execution of the public procurement contract in question, in its entirety or partly, to a subcontractor.
If the bidder intends to entrust the execution of the contract to a subcontractor, he shall be obliged to supply the name of the subcontractor; if the contract is concluded, this subcontractor shall be indicated in the contract between the orderer and the bidder.
The bidder shall be responsible for the execution of the entire public procurement contract irrespective of the number of subcontractors.
The bidder shall be obliged to allow the orderer, upon latter's request, the access to the subcontractor for the purpose of establishing the subcontractor's qualifications.
Submitting a joint bid
Article 51
A bid may be submitted by a group of bidders.
In the case referred to in paragraph 1 of this Article, the orderer may not request a group of bidders to associate themselves into a legal form so that they may submit a joint bid.
The orderer may request a group of bidders to submit a legal act binding themselves to joint execution of the contract in question if it is awarded to them, provided that such a request is necessary for successful execution of public procurement.
The legal act referred to in paragraph 3 of this Article shall specify the responsibility of each bidder for the execution of the contract.
The bidders forming a group of bidders shall bear unlimited joint and several liability towards the orderer.
The orderer may request legal entities to indicate the names and respective professional qualifications of the persons who will be responsible for the execution of the contract in their bids or requests for participation.
Selection of candidates
Article 52
In the first phase of the restrictive procedure the orderer shall select those bidders that will be invited to submit their bids as candidates in the second phase.
In the first phase of the procedures referred to in paragraph 1 of this Article, the orderer shall select the candidates on the ground of the information_submitted by the bidders proving the bidders':
1) legal status;
2) business capacity;
3) financial capacity;
4) technical qualifications and
5) staff qualifications.
The bidder shall prove that the requirements referred to in paragraph 2 of this Article have been fulfilled in the manner prescribed in Article 46 of this Law.
Compiling a list of candidates
Article 53
The orderer shall be obliged to compile a list of candidates and to determine the period during which their qualifications will be recognized; this period may not exceed three years.
9. Criteria for selecting the best bid
Determining the criteria
Article 54
The orderer shall be obliged to announce identical criteria for selecting the best bid in the public invitation and the tender documentation.
The criteria on the ground of which the orderer will select the best bid have to be described and evaluated in the tender documentation; they must not be discriminatory and have to be logically connected with the content of public procurement.
In the tender documentation the orderer shall indicate, describe and evaluate in advance all the criteria that he intends to use.
The orderer may not alter the criteria after announcing the public invitation for bids or forwarding the written invitation to submit the bids in the restrictive procedure.
When evaluating the bids, the orderer shall be obliged to apply only the criteria contained in the tender documentation, in the manner in which they have been described and evaluated.
Types of criteria
Article 55
The criteria for evaluating the bids shall be:
1) the most favorable bid in economic terms or
2) the lowest price offered.
The most favorable bid in economic terms shall be the bid based on different criteria, depending on the object of public procurement, especially including:
1) the deadline for delivery or performance of services or work;
2) running expenses;
3) cost effectiveness;
4) quality and the application of adequate systems of quality analysis/control (QA/QC);
5) aesthetic and functional characteristics;
6) technical and technological advantages;
7) post-sale servicing and technical assistance;
8) the guarantee period, the type and quality of guarantees and the guaranteed values;
9) the responsibilities concerning spare parts;
10) post-guarantee servicing;
11) the price offered;
12) the possibility of typification and unification;
13) the extent to which the services of subcontractors are engaged, etc.
To each of the elements referred to in paragraph 2 of this Article the orderer shall assign relative (weighted) significance in such a way that the sum total of weighted points amounts to 100.
The orderer shall make the selection based on the criterion of the most favorable bid in economic terms by ranking the bids on the ground of those criteria and the points assigned to the criteria in question.
In applying the most favorable bid in economic terms, and where bids exist of a foreign and a domestic bidder performing the works or rendering services, and/or offering goods that are manufactured in the country, the orderer shall select the most favorable domestic bidder, on condition that the difference in the final sum of points assigned between the most favorable domestic bidder and the most favorable foreign bidder does not exceed 20 in the case of the foreign bidder.
The selection between the bids received by applying the lowest price criterion shall be based on the lowest price as the sole criterion if all the requirements contained in the tender documentation have been complied with.
In applying the lowest price criterion, and where bids exist of a foreign and a domestic bidder performing the works or rendering services and/or offering goods that are manufactured in the country, the orderer shall select the domestic bidder offering the lowest price, on condition that the price he has offered does not exceed 20% of the lowest offered price of the foreign bidder.
If the criterion of the lowest price offered applies, the orderer may not accept any price increase following the conclusion of the contract.
The minister of finances shall regulate in detail the matter of evidence relating to meeting the requirements specified in paragraphs 5 and 7 of the present Article, within eight days from the day of coming into force of the present Law.
Variant bids
Article 56
If the criterion for awarding a contract of public procurement is the most favorable bid in economic terms, the orderer may take into consideration variant bids submitted by the bidders fulfilling the minimum requirements concerning the orderer's technical specifications.
The orderer shall be obliged to indicate in the tender doocumentation the minimum technical requirements that have to be observed in variant bids, as well as special requirements for presenting such bids.
If variant bids are not allowed, the orderer shall be obliged to point this out in the public invitation and in the tender documentation.
The orderer may not reject the variants proposed solely on account of the fact that the variant bid was compiled on the basis of technical specifications drawn up in accordance with the national technical specifications recognized as appropriate for the fulfillment of essential requirements.
Unconventionally low price
Article 57
If a bid for public procurement offers unconventionally low prices, the orderer shall be obliged, before refusing such bid, to demand a detailed written justification of all the elements of the bid he considers to be relevant, in particular those concerning the economy of the construction method, production or the selected technical solutions and exceptionally favorable circumstances that are available to the bidder for the execution of the contract, or pertaining to the originality of the products and work proposed by the bidder.
In the case referred to in paragraph 1 of this Article, the orderer shall be obliged to give the bidder a sufficient period of time to reply; this period may not exceed 20 days from the day of having received such a request.
Having received the requested justification, the orderer shall be obliged to check the relevant elements of the bid referred to in paragraph 1 of this Article.
Additional explanations, control and acceptable corrections
Article 58
The orderer may request additional explanations from a bidder that will help him in the course of examining, evaluating and comparing the bids; he may also exert control (insight) of the bidder or the latter's subcontractor.
The orderer may not demand, allow or offer any alterations to the content of a bid, including a change of price; in particular, the orderer may not demand, allow or offer such changes that would turn an incorrect bid into a correct one.
The orderer may, subject to the agreement of the bidder, only correct mistakes noticed in the course of examining the bid after the opening of the bids.
The orderer may request the bidder to forward data on his business connections that are relevant to the public procurement contract in question.
If the value of the contract of public procurement being awarded exceeds 300,000,000 dinars, the bidder shall be obliged to submit his bid along with a copy, in two separate envelopes.
The bidder shall guarantee that the bid and its copy are identical.
A bid shall be opened in accordance with the provisions of this Law, whereas its copy shall be forwarded immediately directly to the Committee for the Protection of the Rights, unopened.
If no request for the protection of the rights is lodged, the copy deposited with the Committee shall be returned to the bidder immediately after the expiry of the deadline for lodging requests for the protection of the rights.
If a bidder lodges a request for the protection of his rights, the copy deposited with the Committee shall be returned to the bidder immediately after the procedure for the protection of his rights is terminated.
10. Deadlines in the procedure of awarding contracts of public procurement
Deadline for submitting bids
Article 59
The orderer shall be obliged to set a deadline for submitting the bids in the public invitation and in the tender documentation.
The deadline for submitting the bids set in the public invitation has to be identical to the deadline set in the tender documentation.
The deadline referred to in paragraph 2 of this Article shall be considered to be the date and the hour by which the bids may be submitted.
After the expiry of the deadline for submitting the bids, the bidder may not withdraw his bid or make alterations to it; if he does so or if he does not sign a contract after his bid has been selected, the orderer shall be authorized to cash the guarantee submitted alongside the bid.
The bidder shall submit his bid in person or by post.
Calculating the deadlines
Article 60
The deadlines for submitting the bids shall be calculated from the day of publishing the public invitation for public procurement in "The Official Herald of the Republic of Serbia".
Timely bid
Article 61
A bid shall be considered timely if it has arrived to the orderer until the date and the hour specified in the public invitation and/or invitation for bids.
Having received a bid, the orderer shall be obliged to mark the date and the hour of receipt and to issue a certificate of receipt should the bidder request it.
If a bid has been submitted after the date and the hour specified in the public invitation, it shall be considered untimely, and the orderer shall return it to the bidder unopened after the procedure of opening the bids is terminated, together with a note stating that it has been submitted in an untimely manner.
Setting the deadline for submitting the bids
Article 62
The deadline for submitting the bids has to be adequate for the period required for the preparation of a correct bid.
If the tender documentation or the technical specifications to be examined are voluminous, or if it is necessary to examine the location and the like, the orderer shall envisage the possibility of extending the deadline.
General deadline for submitting the bids in the open procedure
Article 63
The deadline for submitting the bids in the open procedure may not be less than 40 days from the day of the publication of the public invitation in "The Official Gazette of the Republic of Serbia".
Shorter deadline for submitting the bids in the open procedure
Article 64
The deadline for submitting the bids may be shorter than the deadline referred to in Article 63 of this Law, but it may not be shorter than 30 days.
The deadline for submitting the bids in the open procedure may be shorter than the deadline referred to in paragraph 1 of this Article, but it may not be shorter than 22 days from the day of publishing the public invitation if the orderer, in accordance with the provisions of Article 69 of this Law:
1) has previously issued a notice on the regulation, form stating his intention to award a public procurement contract;
2) has issued the previous notice at least 52 days and no longer than 12 months before the publication of the public invitation;
3) has included in the previously issued notice at least as much information as he had at the moment of issuing the notice.
The deadlines for submitting the bids in the restrictive procedure and the negotiatory procedure
Article 65
The deadline for submitting the bids in the restrictive procedure and the negotiatory procedure may not be shorter than 25 days from the day the public invitation has been published in the "Official Herald of the Republic of Serbia".
Setting the general deadline for submitting the bids in the restrictive procedure
Article 66
The deadline for submitting the bids in the restrictive procedure may not be shorter than 30 days from the day when the orderer sends out a written invitation.
Shorter deadline for submitting the bids in the restrictive procedure
Article 67
The deadline for submitting the bids in the restrictive procedure may be shorter than the deadline referred to in Article 66 of this Law, but it may not be shorter than 26 days from the day of sending out a written invitation if the orderer:
1) has previously issued a notice on the regulation form, stating his intention to award a public procurement contract;
2) has issued the previous notice at least 52 days and no longer than 12 months before the publication of the public invitation;
3) has included in the previously issued notice at least as much information as he had at the moment of issuing the notice.
The application for participating in the procedure of awarding contracts of public procurement may be sent by letter, telegram, telex, telefax or electronic mail; it may also be announced by telephone.
If the application has been sent by telegram, telex, telefax, electronic mail, or if it has been announced by telephone, it has to be confirmed by letter, which is to be forwarded within the period of time set for submitting the bids.
Conditions for additional shortening of the deadlines in the restrictive procedure
Article 68
If in the restrictive procedure, on account of the urgency of the matter, it is not possible to observe the deadlines referred to in Articles 65, 66, and 67 of the present Law, the orderer may set the following deadlines:
1) the ultimate deadline for submitting the application for participating in the procedure may not be shorter than 15 days from the day of publication of the public invitation in the ž'Offcial Herald of the Republic of Serbia'';
2) the ultimate deadline for submitting the bids may not be shorter than 10 days after the day the orderer has sent out. The invitation in writing.
If a candidate has requested additional information in connection with the tender documentation in a timely manner, the orderer shall be obliged to forward that information four days before the expiry of the deadline for submitting the bids at the latest.
11. Publishing the advertisement of public procurement
The manner of announcing public procurement
Article 69
All advertisements to do with public procurement shall be published in "The Official Herald of the Republic of Serbia" and where the value of one public procurement exceeds the amount of 3,000,000 dinars for goods and aservices, and/or 15,000.000 for works, the public invitation shall be published in at least one daily paper distributed on the entire territory of the Republic.
All advertisements to do with public procurement shall be published in the ž'Offcial Herald of the Republic of Serbia'' within 15 days from the day of forwarding the request therof by the orderer.
The advertisements to do with public procurement shall also be published on the web site of the Office, in accordance with the Office's decision.
The advertisements to do with public procurement referred to in paragraph 3 of this Article shall be published in the Serbian language and in a language commonly used in international commerce.
Types of advertisements
Article 70
The types of advertisements used shall be:
1) a previously issued notice;
2) a public invitation;
3) a public invitation for establishing the qualifications of the bidders;
4) notification of awarding a contract of public procurement and
5) periodical informative announcement.
In the restrictive procedure, the orderer shall publish the invitation for establishing the qualification of the bidder, and in the second phase the candidates shall be invited to submit their bids.
A public invitation for establishing the qualifications of the bidders and periodical informative announcement shall be published only in the cases of public procurement in the sphere of waterworks, energy production, telecommunications and traffic.
Previous notice of intent
Article 71
In the case of scheduled public procurement whose approximate value exceeds 50,000,000 dinars, the orderer shall be obliged to publish, at least once a year, a previous notice of the intention to award a public procurement contract.
In the case of public procurement in the sphere of waterworks, energy production, telecommunications and transport, the previous notice shall be published, at the latest, 12 months before the orderer sends out an invitation to participate in the restrictive procedure or the negotiatory procedure; in doing so, the orderer shall observe the deadlines set for submitting the bids in accordance with the provisions of this Law.
Public invitation
Article 72
The orderer shall be obliged to announce a public invitation:
1) in the case of public procurement in the open procedure;
2) in the first phase of the restrictive procedure and
3) in the case of public procurement in the negotiatory procedure after a previously published notice.
A public invitation shall contain information about the orderer, the object of public procurement, the criteria, the time and the place of gaining insight into the tender documentation, the time and the place for submitting the bids, the approximate date of passing the decision on awarding the contract of public procurement, as well as the name of the person to contact for additional information.
A public invitation may contain other data necessary for providing information to the bidders.
A public invitation for establishing the qualifications of the bidders and the content of the invitation for submitting bids in the restrictive procedure
Article 73
In the restrictive procedure, the orderer shall select the most favorable bid after implementing the qualification procedure in the first phase.
In the case of the qualification procedure, the orderer shall be obliged to ensure that bidders may request at any moment that their qualifications for participation in the bidding be established.
A public invitation for the purpose of establishing the qualifications of the bidders in the qualification procedure shall contain, in particular, the information about:
1) the name and the address of the orderer, including the telephone, telefax and telex number, as well as the e-mail address;
2) the purpose of applying the qualification procedure;
3) the address for obtaining information concerning participation in the qualification procedure;
4) the deadline for submitting the application for participation;
5) the duration of the qualification procedure if it is possible to estimate it.
If the orderer estimates that the process of decision making will last more than six months from the day of submitting the application for participation, he shall be obliged to notify the applicants, within two moths of the day of submitting their applications, of the reasons for extending the period of decision making and of the date when the decision will be passed.
The qualification procedure may encompass several phases, and has to be based on non-discriminatory criteria and requirements, established by the orderer in advance.
The orderer may, if need be, update the criteria and requirements referred to in paragraph 6 of this Article.
Upon the request of any interested supplier and provider of services, the criteria and requirements referred to in paragraph 6 of this Article shall be made accessible, and the orderer shall be obliged to inform the interested parties of any update.
If the orderer thinks that his system of qualifications meets the requirements of other orderers as well, he shall be obliged to supply the names of these orderers to interested suppliers and providers of services.
The orderers shall be obliged to implement the qualification procedure for awarding contracts of public procurement in the sphere of waterworks, energy production, telecommunications and transport.
The orderer shall be obliged to invite the selected candidates at the same time in writing to submit their bids.
The invitation shall contain especially information about:
1) the address where the candidate may request the tender documentation and additional documentation, the deadline for submitting the request, the amount and the terms of payment for the tender documentation;
2) the deadline for receiving the bids, the address where the bids are to be sent and the language to be used in making the bids;
3) the bidder's references in the area to which the public procurement in question pertains;
4) the list of documents to be submitted to support the statements made by the candidates pertaining to meeting the requirements for participation or supplying additional data to prove the candidates' financial and business capacity and the ability to execute the contract that is the object of the invitation;
5) the date of opening the bids.
Information about awarding a contract of public procurement
Article 74
The orderer shall be obliged to forward for publishing to the "The Official Herald of the Republic of Serbia" the information about awarding a contract of public procurement within 14 days from the day of concluding the contract at the latest.
Periodical informative announcement
Article 75
Periodical informative announcement refers to the goods, work or services that are the object of public procurement in the restrictive procedure or the negotiatory procedure and by which all the interested bidders are invited to submit their bids in writing.
In the announcement referred to in paragraph 1 of this Article, it shall be stated that the contract will be awarded in the restrictive procedure or in the negotiatory procedure, without any subsequent issuing of a public invitation, and that all the interested bidders are invited to apply for participation in writing.
Before commencing the process of selecting the bidders or participants in the negotiatory procedure, the orderer shall be obliged to invite all the candidates to confirm their interest in participating in the public procurement procedure.
Public opening of the bids
Article 76
The opening of the bids in the open procedure and in the second phase of the restrictive procedure shall be public.
Under exceptional circumstances, the orderer may decide not to open the bids publicly for the purpose of protecting business, official, military or state secrets.
The orderer shall be obliged to state the decision referred to in paragraph 2 of this Article when announcing the public procurement procedure.
Keeping a record of the opening of the bids
Article 77
The orderer shall be obliged to keep a record of the procedure of the opening of the bids, where the following data in particular shall be entered:
1) the registry number of the bid;
2) the name of the bidder, or the bidder's code if the tender is anonymous;
3) the price offered and any reduction offered by the bidder.
The orderer shall be obliged to ensure that the bidders' business secrets are kept.
The Minister of Finance and the Economy shall determine more closely the procedure of opening the bids in the open procedure, the restrictive procedure and the negotiatory procedure; he shall also prescribe the form for keeping a record of opening the bids.
Forwarding the record of the opening of the bids
Article 78
The orderer shall be obliged to forward the record of the opening of the bids within three days of the termination of the process of opening the bids.
13. Awarding a contract of public procurement
Correct bid, adequate bid and acceptable bid
Article 79
The orderer shall select the best bidder if he has received at least two independent correct bids from two different bidders that are not legally connected, in the sense of the provisions of the law regulating the taxation of company profit, and/or the law regulating the taxation of citizens' income.
If the value of one public procurement does not exceed the amount of 3,000,000 dinars for goods and services, and/or 15,000.000 dinars for works, the orderer may decide on awarding the contract on public procurement even after accepting only one bid that is correct, adequate, and acceptable.
Having examined and evaluated the bids in the procedure of awarding a contract of public procurement, the orderer shall be obliged to reject all the incorrect bids, and he may also reject inadequate and unacceptable bids.
If he has received only inadequate or only unacceptable bids, the orderer may continue the procedure of awarding a contract of public procurement in accordance with the provisions of Article 23 of this Law.
The orderer may request bidders or candidates to submit additional proof of meeting the requirements, within 20 days at the latest, but only in the case when the bidders or candidates have been unable to obtain the documents required on account of the fact that they are not issued according to the regulations of the state where the bidder's or the candidate's legal residence is located or according to the regulations of the Republic of Montenegro.
In the case referred to in paragraph 5 of this Article, the orderer shall indicate which documents or additional proof have to be submitted.
Rejection of all bids
Article 80
The orderer shall be obliged to provide a written justification of rejecting all bids, specifying the reasons for rejection.
The orderer shall be obliged to publish the decision referred to in paragraph 1 of this Article in "The Official Herald of the Republic of Serbia".
Report on awarding a contract of public procurement
Article 81
The orderer shall be obliged to compile a written report on each contract of public procurement that has been awarded.
The report referred to in paragraph 1 of this Article shall contain the following data in particular:
1) the name and address of the orderer;
2) the subject and value of the contract of public procurement;
3) the names of the bidders whose bids have been rejected and the reasons for rejection;
4) the name of the successful bidder and the reasons for selecting his bid; if the bidder has stated that he will execute the contract of public procurement using the services of a subcontractor, every part of the contract to be executed by the subcontractor shall be specified;
5) if the negotiatory procedure has been applied - the circumstances justifying the application of this procedure.
Justified notification of awarding a contract of public procurement
Article 82
On the ground of the report referred to in Article 81 of this Law, the orderer shall be obliged to notify the bidders immediately of awarding a contract of public procurement.
A bidder who has not been selected may submit a written request for a justification of awarding the contract of public procurement within eight days of having received the notification referred to in paragraph 1 of this Article.
The orderer shall be obliged to forward the written justification of awarding a contract of public procurement referred to in paragraph 2 of this Article within 15 days of having received the request in writing.
The justification referred to in paragraph 2 of this Article shall contain the following data:
1) the reasons for rejecting the bid of the applicant referred to in paragraph 2 of this Article;
2) the names of the bidders who have met the set requirements and criteria;
3) the advantages of the selected bid from the point of view of meeting the criteria;
4) the name of the bidder whose bid has been selected.
The orderer may refuse to provide written justification, in whole or in part, if forwarding such data would be in violation of the regulations or if it would be against the public interest in some other way, or if it would violate a business secret of the selected bidder, and also if the justification would contain data designated as classified on the basis of other regulations, or if the data thus imparted might adversely affect fair competition among the bidders or other parties in the procedure.
Should the orderer whose bid is selected fail to sign the contract on public procurement, the orderer may conclude the contract with the first following most favorable bidder.
Rejecting applications for establishing qualifications
Article 83
The orderer shall be obliged to notify the candidates whose applications for establishing qualifications have been rejected of the reasons for rejection, which can be based solely on the qualification requirements.
The orderer shall be obliged to keep the written reports on the qualified bidders, classified according to the type of public procurement, in accordance with the regulations pertaining to the sphere of documentary materials and archives.
Excluding candidates from the list of qualified bidders
Article 84
The orderer may exclude a candidate from the list of qualified bidders only for reasons based on requirements determined in advance.
The orderer shall inform the bidder of the reasons for exclusion from the list referred to in paragraph 1 of this Article.
IV THE SUBJECT OF A CONTRACT OF PUBLIC PROCUREMENT AND SPECIAL CASES OF AWARDING A CONTRACT
Determining the subject of a contract of public procurement
Article 85
The subject of a contract of public procurement may be:
1) the purchase of goods (to be paid in a lump sum or in installments);
2) the renting of goods;
3) the leasing of goods (with or without the right of purchase).
Attendant services
Article 86
A contract of public procurement may encompass provision of services as well, if they are of necessity connected with the supply of goods (assembly, transport, insurance or other services defined by the orderer).
Additional deliveries
Article 87
The orderer may award a contract of public procurement in the negotiatory procedure without a prior announcement in the case of additional deliveries by the original supplier intended for:
1) partial replacement of products, materials or installations or
2) the extension of the range of existing products, materials or installations, which would impose upon the orderer the obligation to procure materials of different technical characteristics if the supplier or the provider of services was changed, causing great technical difficulties in business operations and maintenance.
The total value of the additional deliveries referred to in paragraph 1 of this Article may not exceed 25% of the total value of the main public procurement contract.
Other deliveries
Article 88
The orderer may award a contract of public procurement in the negotiatory procedure without a prior announcement in the case of procuring goods intended solely for the purpose of research, experimentation, study or development, and not for any commercial purposes or to compensate for research and development expenses.
Determining the subject of a contract of public procurement of work
Article 89
The subject of a contract of public procurement of work shall be:
1) the execution of work assignments;
2) the design and execution of work assignments in connection with specific activities listed in Annex II, forming an integral part of this Law;
3) construction work on an object taken as a whole which meets all the economic and technical requirements of the orderer.
Prior informative announcement
Article 90
If the estimated value of work exceeds 50,000,000 dinars, the orderer shall be obliged to issue a prior informative announcement of the work immediately after the passing of the law regulating the annual Republic Budget.
Subsidized construction work
Article 91
The provisions of this Law shall apply to the execution of work assignments for which the investor has received a subsidy from a direct or an indirect budget beneficiary, or from an organization of compulsory social insurance, if the subsidy exceeds 50% of the value of the contract of public procurement of work.
The provisions of paragraph 1 of this Article shall apply to public procurement in connection with the building of hospitals, sports and recreational facilities and holiday facilities, school and university buildings and buildings used by state agencies, as well as civil engineering construction work, in accordance with Annex II of this Law.
Additional work
Article 92
The orderer may award a contract of public procurement of work in the negotiatory procedure without a prior announcement in the following cases:
1) in the case of additional work or services that were not included in the project originally assigned or in the original public procurement contract, and which have, due to unforeseeable circumstances, become necessary for the execution of the contract of public procurement of work, on the condition that the contract be awarded to the original contractor or provider of services, and if
(a) such additional work or services cannot be separated, in technical or economic terms, from the main public procurement contract without causing insurmountable difficulties for the orderer; or
(b) if such work or services, which the orderer could assign separately from the execution of the original contract, are necessary for the further phases of the execution of the work in question, provided that the total value of all the additional work or services cannot exceed 25% of the total value of the main public procurement contract;
2) in the case of such new services or work which represent a repetition of similar work or services, and are executed by the original contractor, provided that such work or services fit into the basic project, for which the original contract of public procurement was awarded following the issue of a public invitation. The orderer shall be obliged to mention such a possibility in the initial announcement of the public invitation.
The orderer may award a contract of public procurement of work in the negotiatory procedure without the announcement referred to in paragraph 1 item 2 of this Article if less than three years have elapsed since the conclusion of the initial contract.
Other work
Article 93
The orderer may, without previous initial announcement, in the negotiatory procedure, award also a contract involving construction work solely for the purpose of research, development or experimentation, and not for any commercial purpose of the orderer or for the purpose of compensating for research and development expenses.
Meeting special requirements for awarding a contract
Article 94
In the tender documentation, the orderer may name the agency authorized to provide the necessary information concerning the obligations to be fulfilled in order to meet the requirements of the regulations dealing with safety measures at work, employment and working conditions currently in effect.
In the case referred to in paragraph 1 of this Article, the orderer shall be obliged to request the bidders or candidates to expressly state in the text of their bids that they have observed the obligations resulting from the regulations dealing with safety measures at work, employment and working conditions currently in effect.
The orderer shall in particular verify the fulfillment of the obligations resulting from the regulations dealing with safety measures at work, employment and working conditions currently in effect if the exceptionally low price offered results from non-observance of these regulations.
List of interested contractors
Article 95
Based on a public invitation, the Chamber of Commerce of the Republic of Serbia (hereinafter: the Chamber) shall compile a list of interested contractors in the area of construction work, adhering to binding requirements for the participation in the procedure of public procurement and the requirements dealing with construction work in the Republic.
If the FR of Yugoslavia has concluded an agreement with another state, contractors whose legal residence is located in other states will be included in the list, provided that they meet the requirements referred to in paragraph 1 of this Article.
Contractors whose legal residence is located in the Republic of Montenegro will be included in the list, provided that they meet the requirements referred to in paragraph 1 of this Article.
If the Chamber receives information to the effect that a contractor included in the list of interested contractors does not fulfill the requirements referred to in paragraphs 1 and 2 of this Article, it shall send a written request to such contractor, demanding that he should prove again, within eight days of having received the request in writing, that he fulfils the said requirements.
If the contractor referred to in paragraph 4 of this Article fails to provide evidence of fulfilling the requirements referred to in paragraphs 1 and 2 of this Article, the Chamber shall delete his name from the list of interested contractors.
For each public procurement procedure they participate in, the contractors shall submit a certificate of being included in the list issued by the Chamber.
Statement given by a bidder or a candidate on meeting the obligations towards the employees and the subcontractors
Article 96
For each contract of public procurement the orderer shall be obliged to demand that a bidder or candidate should submit a statement to the effect that he fulfils the minimum requirements of the collective agreement or some other corresponding legal act in an orderly manner, and that he fulfils the obligations he has towards the subcontractors regularly and in a timely manner.
The orderer may impose special conditions concerning the fulfillment of obligations on the part of the contractor towards his subcontractors, and the bidder shall expressly accept those conditions.
Determining the subject of a contract of public procurement of services
Article 97
The subject of a contract of public procurement of services shall be the services listed in Annexes I A and I B, forming an integral part of this Law.
Public procurement of services directly subsidized from the budget where the amount of the subsidy exceeds 50% of the value of the contract and where the orderer is not a direct beneficiary of the budget shall be executed in accordance with the provisions of this Law.
Services that this Law does not apply to
Article 98
The provisions of this Law shall not apply to:
1) the services referred to in Article 2 of this Law;
2) financial services (credit, loan) connected with buying or renting land, residential objects or other real estate items, or the rights attached to them, irrespective of the form conclusion of the contract on financial services, of whether it is concluded simultaneously, prior to or after the conclusion the contract of purchase or renting real estate;
3) the buying, developing, production or co-production of radio or television programs or time for broadcasting programs;
4) voice telephony, telex, radio-telephone, paging, internet and satellite services;
5) arbitrage services and the settling of disputes by mutual agreement;
6) financial services in connection with the issuing, selling, buying and transferring securities or other financial instruments;
7) the services of the National Bank of Serbia;
8) contracts of employment, ruling of employment, contract of performing temporary and periodical jobs, and
9) services pertaining to research and development (except in the case when the orderer uses the research results solely for his own needs), provided that the orderer bears the costs of these services in their entirety.
Awarding a contract of public procurement through a tender
Article 99
The orderer shall award a contract of public procurement of services by means of a tender in the sphere of urban planning, architecture, civil engineering, engineering, design and informatics.
A draft, plan or design shall be selected by an independent jury.
Only natural persons who are not in any way connected with the participants in the tender may be members of the jury referred to in paragraph 2 of this Article.
Should the orderer demand that the participants in the tender have special professional qualifications or experience, at least one third of the members of the jury have to possess equal qualifications and/or experience as a minimum.
The jury shall be independent when it comes to decision making, and the participants in the tender shall be anonymous.
The decision of the jury shall be based solely on the criteria referred to in Article 55 of this Law.
Additional services
Article 100
The orderer may award a contract of public procurement of services in the negotiatory procedure without a prior announcement:
1) in the case of additional services or work not included in the originally assigned project or in the original public procurement contract, which, due to unforeseeable circumstances, have become necessary for the execution of the public procurement contract in question, provided that the contract be awarded to the original provider of services or contractor, and if:
(a) such additional services or work cannot be separated, in technical or economic terms, from the main public procurement without causing insurmountable difficulties for the orderer, or
(b) if such services or work, although the orderer could award them separately from the execution of the original contract, are necessary for the subsequent phases of the work; the total estimated value of these additional services or work may not exceed 25% of the total value of the main public procurement contract;
2) in the case of new services and work that represent a repetition of similar services or work executed by the original contractor, on the condition that such services or work fit into the basic project, for which the original contract of public procurement was awarded following the issue of a public invitation. The orderer shall be obliged to indicate this possibility in the first announcement of a public invitation. The orderer may award a contract of public procurement of services in the negotiatory procedure without the prior announcement referred to above only if less than three years have elapsed since the conclusion of the first contract;
3) when a contract of public procurement of services is awarded on the basis of a tender for a draft, plan or design referred to in Article 99 of this Law, and if it is to be awarded to one successful candidate or one of several successful candidates. If there are several successful candidates, the orderer shall be obliged to invite each one of them for negotiations.
Awarding a contract of consulting services
Article 101
A contract of consulting services (the services referred to in items 9-11 of Annex I A and the services referred to in items 21-22 of Annex I B) shall be awarded in the restrictive procedure.
In the first phase, the orderer shall recognize the qualifications of a certain number of candidates on the basis of ability and professional experience in connection with the services that are the object of public procurement.
By exception from the provisions of paragraph 2 of this Article, on account of the nature of the consulting services that are the object of public procurement, the orderer may issue a public invitation requesting potential bidders to express their interest.
The public invitation referred to in paragraphs 2 and 3 of this Article shall contain information about:
1) the name and address of the orderer, including the telephone, telefax and telex number and the e-mail address;
2) the purpose of applying the qualification procedure;
3) the address where information concerning participation in the qualification procedure may be obtained;
4) the deadline for submitting a request for participation;
5) the duration of the qualification procedure, if it is possible to estimate it;
6) the consulting service that is the object of public procurement;
7) the manner of obtaining the pre-qualification documentation;
8) the amount of the expenses incurred for the copying and forwarding the pre-qualification documentation that have to be covered.
In the second phase, the orderer shall invite all the candidates whose qualifications have been recognized or the bidders who have expressed their interest in submitting a bid.
Article 102
The orderer may, having previously obtained the approval of the Office, forward an invitation for submitting bids for consulting services directly to the bidders if:
1) the consulting service that is the object of public procurement may be obtained only from a limited number of bidders, in which case the invitation for submitting the bids shall be forwarded to all such bidders;
2) the time and the expenses necessary for evaluating a great number of proposals would not be commensurate with the value of the service that is the object of public procurement, on the condition that the invitation for submitting the bids has been forwarded to a sufficient number of bidders to ensure effective competition.
In addition to the elements referred to in Article 52, paragraph 2 of this Law, an invitation for submitting bids for consulting services shall contain a statement concerning the relative (weighted) significance of the criteria that will be applied for the evaluation of the bids.
The orderer shall be obliged to base the criteria referred to in paragraph 2 of this Article on the following:
1) the qualifications, experience, reputation, reliability and professional and managerial ability of the bidder and the staff involved in providing the service in question;
2) to what extent the bid in question meets the needs of the orderer;
3) the price offered, including potential side expenses and attendant expenses;
4) the scope of the participation of domestic participants and how this will boost employment;
5) the effects of the transfer of technology and knowledge, and of the development of managerial and professional skills;
6) other circumstances, depending on the nature of the consulting service.
To each of the elements from paragraph 3 of this Article the orderer shall assign a relative significance (weight), so that the sum total of weighted points amounts to 100.
The orderer shall evaluate the bids submitted by establishing the minimum requirements that the bids have to meet in terms of quality and technical aspects, which shall be obtained by applying the weighted criteria referred to in paragraph 3 items 1, 2 and 4-7 of this Article, followed by ranking the bids on the ground of these criteria and weighted points.
After completing the ranking procedure, the orderer shall compare the prices offered in the bids ranked above the minimum requirements level.
A bid referred to in paragraph 5 of this Article may be selected:
1) on the ground of the lowest price offered, or
2) on the ground of the best combined mark covering the criteria referred to in paragraph 3 items 1, 2, 4 and 6 of this Article and the price offered.
Article 103 and 104
(Deleted)
Tender as an integral part of another service
Article 105
In accordance with the provisions of this Law, the object of public procurement encompasses tenders for drafts, plans or designs which form an integral part of the procedure for awarding a contract of public procurement of the services referred to in:
1) Annex I B;
2) Annex I A, with the exception of voice telephony, radio telephony, paging and satellite services referred to in item 5 of the said Annex.
Tender as an independent service
Article 106
The object of public procurement shall also encompass independent tenders for drafts, plans or designs, involving the awarding of prizes and paying the participants in the case of the services referred to in:
1) Annex I B;
2) Annex I A, with the exception of voice telephony, radio telephony, paging and satellite services referred to in item 5 of the said Annex.
V PUBLIC PROCUREMENT IN THE SPHERES OF WATERWORKS, ENERGY PRODUCTION, TELECOMMUNICATIONS AND TRAFFIC
The object of public procurement
Article 107
The following shall be considered to be public procurement in the sphere of waterworks, energy production, telecommunications and traffic:
1) the supply or operation of permanent networks providing public services in connection with the production, transport or distribution of: drinking water, electric power, gas and heat, as well as supplying drinking water, electric power, gas or heat to these networks;
2) the exploitation of a specific geographic area for the purpose of exploring for or extracting oil and gas, exploring for or digging coal or other solid fuels, as well as the building, exploitation and maintenance of airports, river ports or other terminals for air or river transport carriers;
3) the operation of networks providing public services in the sphere of railway transport, automated systems, bus transport or telegraphy. In the case of transport services, it shall be considered that a network exists if the service is provided in accordance with the operating conditions (e.g. the maintenance of roads, the availability or frequency of the service) prescribed by the competent agency;
4) the maintenance or operation of public telecommunications networks or the providing of telecommunications services, with the exception of those areas of public procurement where the orderers award contracts of purchase whose sole purpose is to enable them to provide telecommunications services, provided that other organizations may offer their services in the same area and under the same conditions.
Awarding a contract whit a special or exclusive right
Article 108
If the Republic, a territorially autonomous unit or local government has granted, through a special law, decree or other regulation, a special or exclusive right to perform the activities referred to in Article 107 of this Law, the holder of such a right shall be obliged, when procuring goods, services or work, to act like an orderer in terms of this Law.
Granting a special or exclusive right to perform the activities referred to in paragraph 1 of this Article shall not encompass granting concessions to a person who is not an orderer in terms of this Law.
The special or exclusive right referred to in paragraph 1 of this Article means that the holder of such a right may use expropriation for the purpose of building the networks or facilities referred to in Article 107, and that he may install the equipment for building a network on, below or above a public road.
In terms of paragraph 1 of this Article, the right referred to in Article 100 paragraph 1 of this Law, when its holder provides drinking water, electric power, gas or heat for a network operated by another person, shall also be considered to be a special or exclusive right.
Deciding on exemptions from the object of public procurement
Article 109
The providing of drinking water, electric power, gas or heat shall not be considered to be one of the activities referred to in Article 107 of this Law in the following cases:
1) in the case of providing drinking water or electric power:
(a) if a person who is not an orderer in terms of this Law draws drinking water or produces electric power, and the consumption of these goods is necessary for performing activities not specified in Article 107 of this Law;
(b) if the providing of a public network depends solely on the personal consumption of a person who is not an orderer in terms of this Law, and if this consumption does not exceed 30% of the total consumption of drinking water or electric power on the part of that person, taking into consideration the average consumption over the last three years, including the current year;
2) in the case of providing gas and heat:
(a) if the production of gas or heat on the part of a person who is not an orderer in accordance with the provisions of this Law is an unavoidable consequence of performing activities not specified in Article 107 of this Law, and
(b) if the providing of a public network is intended solely for the purpose of economic exploitation of such production and does not exceed 20% of the total annual income of the organization in question, taking into consideration the last three years, including the current year.
Additional procurement
Article 110
The object of public procurement in the spheres of waterworks, energy production, telecommunications and traffic may also be procurement:
1) connected with hydraulic engineering projects, irrigation or land drainage, provided that the quantity of water intended for water supply exceeds 20% of the total quantity of water provided through these projects, irrigation or land drainage;
2) connected with wastewater treatment or filtration.
Procurement in the spheres of waterworks, energy production, telecommunications and traffic that this Law does not apply to
Article 111
The provisions of this Law shall not apply to public procurement in the sphere of waterworks, energy production, telecommunications and traffic in the following cases:
1) when the orderer responsible for providing or operating public telecommunications networks, or for providing telecommunications services awards a contract of buying and selling goods whose sole purpose is to enable him to provide one or several kinds of telecommunications services, provided that another person may freely offer his services in the same area and under the same conditions;
2) when the orderer awards a contract for the purpose of purchasing water;
3) when the orderer awards a contract for the purpose of providing electric power or providing fuel for electric power production;
4) when the orderer transports oil or natural gas through systems where only one bidder exists;
5) in the case of a public tender for designs which the orderer awards or agencyizes for purposes not specified in Article 107 of this Law;
6) in the case of services that the orderer awards to a mixed company, established by several orderers for the purpose of performing activities in the following areas:
(a) the supplying or operation of permanent networks intended for providing public services in connection with the production, transfer or distribution of drinking water, electric power, gas or heat, or supplying drinking water, electric power, gas or heat;
(b) the exploitation of a certain geographic area for the purpose of supplying airports, river ports or other terminals for air or river transport;
(c) the operation of networks providing public services in the sphere of railway traffic, automated systems, bus traffic and telegraphy. It shall be considered that a traffic network exists if the service in question is provided in accordance with the operating conditions (e.g. the maintenance of roads, the availability or frequency of the service in question) prescribed by the competent agency;
(d) the supplying or the operation of public telecommunications networks or the providing of telecommunications services;
7) services that the orderer awards to an affiliated company, provided that the affiliated company has made at least 80% of its average overall income over the last three years from the services provided in the Republic, for the companies it is affiliated with;
8) providing public bus transport services, provided that other persons may provide those services in the same geographic area under the same conditions.
Also, the provisions of this Law shall not apply to public procurement contracts warded to other companies for the purpose of resale or renting, provided that the orderer shall not have exclusive or special rights to the resale of renting the object of public procurement, and that other companies may freely sell or rent it under the same conditions.
The orderer shall be obliged to notify the Office of the public procurement referred to in paragraph 2 of this Article.
Awarding a contract without a prior announcement
Article 112
The orderer may award a contract of public procurement without a prior announcement:
1) if no bids or no adequate bids have been received in the procedure involving a public invitation for submitting bids, provided that the original conditions of the procurement remain essentially unchanged;
2) if the contract is awarded solely for the purpose of research, experimentation, study or development, and not for profit or to compensate for research and development expenses, provided that the awarding of such a contract does not determine or limit any future awarding of contracts, when it would be necessary to ensure that there is competition among the bidders;
3) if, due to objective reasons or for reasons connected with the protection of exclusive rights, the contract may be executed by a specific supplier or provider of services;
4) if there occur any unforeseen circumstances which the orderer could not influence and on account of which he was unable to execute the procedure involving a public invitation within the stipulated period of time;
5) if the contract is awarded for additional deliveries by the original supplier intended for partial replacement of products, materials or installations, or for the extension of the range of existing products, materials or installations, in a situation where a change of supplier or provider of services would oblige the orderer to obtain materials with different technical characteristics, which would result in incompatibility or cause excessive technical difficulties in operation and maintenance;
6) for goods offered and purchased on commodity markets;
7) for additional work or services not included in the project originally awarded or in the contract originally concluded, which, due to unforeseeable circumstances, have become necessary for the execution of the contract of public procurement, provided that the contract be awarded to the contractor or service provider executing the original procurement contract:
(a) if such additional work or services cannot be separated, in technical or economic terms, from the main contract without harmful consequences for the orderer;
(b) if the additional work or services, even though they are separable from carrying out the original contract, are necessary for the subsequent phases of contract execution, provided that the total estimated value does not exceed 25% of the value of the original contract;
8) for new work or services which represent a repetition of similar services or work awarded to the contractor or service provider who has been awarded the previous contract, provided that the work or services fit the basic project for which the original contract was awarded after a public invitation. The orderer shall be obliged to announce such a possibility immediately after the issue of the first public invitation. The orderer may award a contract in this manner within a period of three years from the day of concluding the first contract;
9) for procuring goods sold under particularly favorable circumstances, at a price considerably below the market price;
10) for the purchase of goods under particularly favorable circumstances from a supplier undergoing a winding-up procedure, with the agreement of other creditors, in accordance with the regulations dealing with compulsory compounding with creditors, winding-up and bankruptcy;
11) for services that are part of the continuation of a tender for designs organized in accordance with this Law, if the contract in question was granted to a participant or participants who have been awarded prizes, in which case the orderer shall be obliged to invite all the participants for negotiations;
12) for the services and goods of firms dealing with the training, professional rehabilitation and employment of invalids, if the procurement is directly connected with the training, professional rehabilitation and employment of such persons, provided that such firm fulfils the requirements referred to in Article 45 of this Law and that the Office has given its approval. The orderer shall be obliged to check the price and the quality of the object of procurement by gathering several bids, analyzing the expenses, comparing the quality or in some other way, as well as by making checks, while taking in consideration the object of procurement as stated in his documentation.
Ban on limiting participation
Article 113
The right to participate in a tender for designs may not be limited by the territorial affiliation of the participants or by their character (natural person or legal entity).
If tenders for designs are planned for a limited number of participants, the orderer shall be obliged to establish clear and non-discriminatory criteria for selection.
The number of candidates invited to participate in a tender for designs has to be sufficient to ensure that there is real competition (no less than five, and 20 at the most).
The jury evaluating the proposals that have been submitted shall be composed solely of natural persons who are not in any way connected with the participants in the tender.
If special professional qualifications are required from the participants in a tender, a minimum of one half of the jury members shall have the same or corresponding professional qualifications.
The jury shall be independent in decision making, and participation in the tender shall be anonymous.
The decisions of the jury shall be made on the ground of criteria indicated in the tender advertisement and in the tender documentation, in accordance with Article 55 of this Law.
Prior notice
Article 114
When awarding contracts of public procurement in the sphere of waterworks, energy production, telecommunications and transport, the orderer shall be obliged, in accordance with the provisions of Article 67, paragraph 2 of this Law, to give, at least once a year, prior notice of:
1) the basic characteristics of the work he intends to contract, if its estimated value is not less than:
a) 300,000,000 dinars if the orderer performs activities in the sphere of telecommunications;
b) 25,000,000 dinars for procuring services not specified in Annex I A, with the exception of the services referred to in item 5 of the said Annex, if the orderer is involved in the drawing, transfer or distribution of drinking water, the transfer or distribution of electric power, the supply of airports, bus, trolleybus or streetcar transport, or the supply of river ports and other terminals;
c) 300,000,000 dinars if the orderer is involved in the transport or distribution of gas and heat, or the extraction and processing of oil and gas, or railway transport services;
2) the estimated total value of a contract of public procurement of services in each of the category of services specified in Annex I A that the orderer intends to award in the next 12 months, if the estimated value in question is not less than 50,000,000 dinars.
Updating the criteria and requirements
Article 115
If the orderer decides to make a selection in the qualification procedure or if he updates the criteria and requirements, he shall be obliged to set criteria and requirements that are not discriminatory towards the bidders.
Submitting certificates
Article 116
The orderer may request the candidates to submit certificates issued by the agencies or organizations authorized to verify that the bidders fulfill the orderer's requirements concerning the standard of quality.
The certificates referred to in paragraph 1 of this Article shall refer to the systems for ensuring quality in accordance with the corresponding European standards series EN 29000, for which the authorized agencies or organizations have to certify that they are in compliance with the European standards series EN 45000.
The orderer shall be obliged to recognize the equivalent certificates issued by agencies or organizations established in other states if this is prescribed by an international agreement concluded by the FR of Yugoslavia.
The orderer shall be obliged to recognize other proof of equivalent measures of ensuring quality on the part of service providers who do not have access to the certificates referred to in paragraph 3 of this Article or are unable to obtain them in time.
Joint bid
Article 117
Bidders may submit a joint bid or negotiate as a group, in accordance with the provisions of Article 51 of this Law.
The orderer who demands in his advertisement that only natural or only legal persons may be bidders or candidates may not reject bidders or candidates who perform their activities in accordance with the regulations of the state where their legal residence is located, and who are allowed to perform the activity that is the object of the public procurement.
Application of other criteria and requirements
Article 118
In addition to the criteria referred to in Articles 54 and 55 of this Law, the orderer may apply other criteria for evaluating bids, if those criteria are prescribed by some other regulations that are in effect and if they give a certain advantage to bidders or candidates, and if such a way of awarding a contract of public procurement is not in violation of international agreements concluded by the FR of Yugoslavia.
The application of other criteria has to be announced in the public invitation and in the tender documentation.
If the strategic interest in awarding a contract of public procurement of goods or work is the elimination of regional differences or the provision of new jobs in underdeveloped regions, the manner of awarding a contract referred to in paragraph 1 of this Article may not be in contravention of international agreements concluded by the FR of Yugoslavia.
The Government shall be authorized to determine the strategic interests that apply when other criteria and requirements are set.
Observing the principle of reciprocity
Article 119
If some bidders offer products originating from a country with which the FR of Yugoslavia has not concluded an agreement that would enable Yugoslav bidders to have access to the market of that state on an equal footing, such bids may be rejected if more than 50% of the products offered in those bids originate from such state.
The origin of products shall be established in accordance with the relevant regulations.
In terms of paragraphs 1 and 2 of this Article, software used for equipping a telecommunications network shall be considered a product.
The orderer shall be obliged to review carefully the list of countries from which products that may be rejected in accordance with the provisions of paragraph 1 of this Article originate.
Suspension of awarding contracts of public procurement of services
Article 120
Having obtained the opinion of the federal Ministry in charge of economic relations with foreign countries, the Government may temporarily suspend the awarding of contracts of public procurement of services:
1) to bidders whose legal residence is located in a country with which the FR of Yugoslavia has not concluded an agreement on treating domestic and foreign bidders equally;
2) to bidders who are affiliated to the bidders referred to in paragraph 1 of this Article and whose legal residence is located in a state with which the FR of Yugoslavia has concluded an agreement on equal treatment of domestic and foreign bidders, but who are not directly and effectively connected with the economy of the Republic;
3) to bidders having submitted bids offering services from a state with which the FR of Yugoslavia has not concluded an agreement on equal treatment of domestic and foreign bidders.
Preferential awarding of a contract of public procurement
Article 121
If two or more bids are equal on the ground of the criteria speciified in Articles 54, 55 and 56 of this Law, the orderer shall be obliged to give priority to the bids which:
1) if a contract of public procurement was awarded, could not be suspended on the basis of the provisions of Article 120 of this Law;
2) if a contract of public procurement was awarded, would not result in the orderer having to procure materials whose technical characteristics are different from those of the existing materials.
In terms of paragraph 1 of this Article, those bids whose prices do not differ by more that 3% shall be considered equal.
Filing away the documentation
Article 122
The orderers shall be obliged to keep the documentation to do with the awarding of contracts in the sphere of waterworks, energy production, telecommunications and transport pertaining to:
1) the qualifications and selection of bidders, and the awarding of a contract of public procurement;
2) the implementation of the procedure without a prior announcement, in accordance with Article 112 of this Law;
3) the awarding of contracts of public procurement of services, the application of technical specifications and standards, and the selection of the method of public procurement, when the provisions of this Law have not been applied.
The orderer shall be obliged to keep the documentation referred to in paragraph 1 of this Article for at least four years from the day of the conclusion of a contract, and to forward the data to the competent agency upon the request of the latter.
The notion of public procurement of low value and the manner of awarding public procurement contracts of low value
Article 123
Public procurement of low value, in terms of this Law, shall be a procurement whose estimated value, at one year level, is lower than the value determined by the law regulating the annual Republic Budget.
The law referred to in paragraph 1 of this Article may specify also the valu of a procurement to represent the upper limit in the fiscal year below which the orderers shall not be obliged to apply the provisions of the present Law.
Each year, when preparing the annual Republic Budget proposal, the Government shall be obliged to determine the value representing the upper limit in the budget year below which orderers may conduct the procedure of public procurement of low value.
In the procedure of public procurement of low value, the orderer shall be obliged to obtain at least three bids and to notify the bidders of the elements included in the price of public procurement (e.g. compensation for transport and insurance expenses, tax duties, turnover tax, excise tax, etc.).
The bidders may submit only one bid each and may not alter it.
The orderer and the bidders shall not be allowed to negotiate elements of the bids.
A contract of public procurement of low value shall be awarded to the bidder who offers the lowest price under the same conditions.
Preparation of internal acts
Article 124
The orderer shall be obliged to regulate the procedure of awarding a contract of public procurement of low value by means of an internal act, in conformity with the provisions of this Law.
In the internal act referred to in paragraph 1 of this Law, the orderer shall in particular regulate:
1) the manner of executing public procurement concerning the estimated value, technical and technological requirements and the financial consequences of the procurement;
2) the manner of preparing the tender documentation;
3) the persons authorized to collect bids by telephone, telefax and the like, and in particular the method of verifying the price offered;
4) the manner of documenting the bids and keeping the documentation;
5) the manner of executing the contract once it is concluded and monitoring its execution, in particular during the guarantee period;
6) the manner of using order forms and other standard documents prepared in advance in the course of this procedure; the orderer shall be obliged to prescribe a limit for using a standard document prepared in ad_ance for each individual contract of public procurement.
The orderer shall be obliged to determine the manner of proving that the minimum requirements for bidders have been complied with, in accordance with the provisions of this Law.
Keeping records of concluded contracts of low value
Article 125
The orderer shall be obliged to keep special records of contracts of public procurement of low value concluded in the procedure of awarding contracts for public procurement of goods, services and work.
VII RECORDS OF PUBLIC PROCUREMENT
Types of data on public procurement
Article 126
The orderers shall be obliged to collect and keep records of specific data concerning awarded contracts of public procurement, in accordance with the provisions of this Law; they shall be obliged to keep records separately for contracts of public procurement of goods, public procurement of services and public procurement of work, as well as public procurement in the sphere of waterworks, energy production, telecommunications and traffic.
The Minister of Finance shall prescribe the forms for entering data on public procurement.
The content of a report
Article 127
A report on contracts of public procurement to be forwarded by the orderer to the Office shall contain the following information:
1) the estimated value of concluded contracts;
2) the number and the value of concluded contracts, and the type of procedure used in awarding a contract, the type of objects and details of the type of objects, the type of criteria for assessing the bids, the name of the other party to the contract and its legal residence, the date of concluding the contract, the number and value of contracts entered into with parties to the contract whose legal residence is in the Republic of Serbia, the Republic of Montenegro, and abroad, the number of bids that have arrived and the information about the realisation of the contracts.
If the contract is awarded in the restrictive procedure or the negotiatory procedure, the report should also indicate the ground required by the corresponding article of the present Law.
The orderer shall be obliged to separately indicate in the report the data on contracts of public procurement of low value.
The Minister of Finance shall prescribe the content of the report referred to in paragraph 1 of this Article more closely.
The orderer shall be obliged to forward a report on contracts of public procurement concluded in the course of the previous year to the Office by February 28th at the latest.
The Office may require from every orderer a report on a single contract awarded in the procedure of public procurement, with additional information, should this become necessary for the keeping of records of data in the area of public procurement, and/or for protecting the public interest.
The Office shall be obliged to compile a cumulative report and to forward it to the Government by May 31st of the current year at the latest.
VIII PROTECTION OF THE RIGHTS OF THE BIDDERS AND THE PUBLIC INTEREST
The entity in charge of ensuring legal protection
Article 128
The protection of the rights of bidders and the public interest in all the phases of the procedure of public procurement shall be ensured by the Committee for the Protection of Rights (hereinafter: the Committee), that is to be established by the Offfice.
The composition and the appointment of the Committee
Article 129
The Committee shall have a Chairman and four members.
The Chairman and the members of the Committee shall be appointed by the Government, acting upon the proposal of the Minister of Finance
The Chairman and the members of the Committee may not be members of parliament, deputies or municiality board members, nor may they perform other function, serve office, do job or perform a duty that could influence their autonomy in the work and the proceeding, or could undermine their reputation or the reputation of the function of a member or the Chairman of the Committee.
The Chairman of the Committee shall be a graduate lawyer who has passed the Bar examination. The Chairman of the Committee shall be equal in terms of the employment rights and duties, to a functionary heading a particular organisation.
A minimum of two members of the Committee shall be graduate lawyers, and the remaining members may be graduate economists or engineers. The members of the Committee shall be equal in terms of employment rights and duties to an assistant functionary heading the particular organisation.
The term of office of the Chairman and the members of the Committee shall be four years; upon its expiry, they may be appointed again.
The Chairman or the member of the Committee shall be relieved from duty against their will:
1) if he is convicted for a criminal offence to an unconditional sentence of imprisonment for a term of six months at the least, or if he is convicted for a punishable act that makes him inapapropriate to perform such function;
2) if it is found that, on the ground of a diagnosis or an opinion of a health-care instsitution, he has permanently lost due to health condition the work ability for performing the function.;
3) if it is found that he is performing the function contrary to paragraph 3 of the present Article.
The manner of work of the Committee
Article 130
The manner of the work of the Committee shall be determined by a special act passed by the Committee.
The Committte shall submit a report for the previous year to the Government and the National Assembly, until February 1st of the current year at the latest.
Keeping the secrecy
Article 131
The members of the Committee shall keep the data pertaining to state, military, professional or business secrets, and shall treat the documents in accordance with the level of their confidentiality.
Capacity to be a Plaintiff in the Procedure
Article 132
A request for the protection of rights may be submitted by any person who has or has had an interest to be awarded a contract of the public procurement (hereinafter: the submitter of request).
A request for the protection of public interest may be submitted by the Office, in all the phases of the procedure of public procurement.
Exclusion of the Right to Protection
Article 133
It shall not be possible to challenge by the request for protection:
1) the criteria for evaluating the bids, as determined in conformity with the present Law;
2) restrictions for the participation as prescribed by the present Law.
Consequences of the submitted Request for the Protection of Rights
Article 134
A request for the protection of rights shall withhold further activities of the orderer in the procedure of awarding the contract of public procurement until the passing of the decision on the submitted request, unless the Committee, at orderer's proposal, decide otherwise.
In passing the decisions referred to in paragraph 1 of the present Article, the Committee shall consider the consequences that may arise for the participants in the procedure of public procurement, and the need for protecting the public interest.
Should the Committee accept the proposal referred to in paragraph 1 of the present Article, the orderer shall be obliged to inform thereof all the participants in the procedure.
Deadlines and Way of submitting a Request for the Protection of rights
Article 135
A request for the protection of rights may be submitted in course of the entire public procurement procedure against any act of the orderer, unless otherwise stipulated by this Law.
After passing the decision on awarding the contract of public procurement and/or the recognition the qualification, the deadline for submitting a request for protection of rights shall be eight days from the day of receiving a justified notification on awarding the contract of public procurement ad/or the recognition of qualification.
A request for the protection of rights may not challenge the acts of the orderer taken in the procedure of awarding the contract of public procurement, and/or the recognition of qualification, if the reasons for submitting the said request were known to the submitter of the request, or could have been known to him, before the orderer made the decision on awarding the contract of public procurement and/or the recognition of qualification, and the submitter of the request failed to submit it before passing such decision.
The request for the protection of rights shall be submitted to the orderer in three copies, directly or by registered post with return receipt.
A copy of the request for the protection of rights shall be forwarded by the orderer simultaneously to the Committee.
The orderer shall notify on the submitted request for the protection of rights all the participants in the procedure of awarding the contract of public procurement, within three days from the day of the receipt of the request for the protection of rights.
The content of a request for the protection of rights
Article 136
A request for the protection of rights shall include:
1) the name and address of the submitter and the contact person;
2) the name and address of the orderer;
3) the public procurement contract which is the subject of the request and/or the decision on awarding the contract of public procurement or on the recognition of the qualification;
4) the violations of the regulations relating to the procedure of awarding the contract of public procurement;
5) the facts and evidence such violations;
6) acknowledgment of payment of tax referred to in Article 143, paragraph 1 of the present Law;
7) submitter's signature
Should the submitted request fail to include all the data specified in paragraph 1 of the present Article, the orderer shall immediately invite the submitter of such request to supplement the request within three days.
Should the submitter of the request fail to proceed within the deadline specified in paragraph 2 of the present Article, and/or to supplement it in conformity with the invitation for completing it, the orderer shall reject such request by the conclusion.
The submitter of the request may lodge an appeal to the Committee against the conclusion of the orderer referred to in paragraph 3 of the present Article, within three days from the day of having received the conclusion.
Prior verification of a request for the protection of rights
Article 137
After receiving a request for the protection of rights, the orderer shall check whether it has been submitted in a timely manner and by an authorised person .
If the request for the protection of rights has been submitted in an untimely manner, or if it has not been submitted by a person having no capacity to be a plaintiff, the orderer shall reject such a request by a conclusion.
The submitter of the request may lodge an appeal against the conclusion referred to in paragraph 2 of the present Article, within three days from the day of having received such conclusion.
Decision of the orderer on a request for the protection of rights
Article 138
After prior verification, the orderer shall decide by a ruling on the request for the protection of rights by either:
1) annulling the procedure of awarding the contract of puiblic procurement, in its entirety or partly, or
2) rejecting the request for the protection of rights.
The orderer shall pass the justified ruling referred to in paragraph 1 of the present Article and shall forward it within 10 days of having received the request for the protection of rights.
If the submitter of the requset for the protection of rights was not served the ruling of the orderer within the time limit stipulated in paragraph 2 of this Article, the submitter of the request may continue with the procedure before the Committee, by stating in writing, in course of the following three days, in which time limit he shall inform the orderer about the continuation of the procedure.
Should the submitter of the request fail to continue the procedure within the time limit specified in paragraph 3 of the present Article, it shall be considered that the procedure of the protection has never been initiated.
Continuation of the procedure after passing orderer's decision
Article 139
The ruling referred to in Article 138, paragraph 1, item 2) of the present Law shall also include the invitation to the submitter of the request to take stand and inform the orderer, in writing and within three days from the day of having received the ruling, on whether he is going to continue the procedure before the Committee, as well as the information relating to the consequences of failing to respect the time limit for such taking stand.
Ther submitter of the request for the protection of rights shall forward to the Committee a copy of his written statement regarding the continuation of the procedure.
After having received the written statement of the submitter of the request for the protection of rights regarding the continuation of the procedure before the Committee, the orderer shall forward to the Committee, in course of the following three days, the complete documentation.
Should the submitter of the request fail to respect the time limit for taking stand, referred to in paragraph 1 of the present Article, the orderer shall pass the conclusion on rejecting the request..
It shall be allowed to lodge a complaint to the Committee against the conclusion referred to in paragraph 4 of this Article, within three days from the day of having received such conclusion..
Continuation of the procedure before the Committee
Article 140
The Committee shall decide within the framework of the submitted request for the protection of rights, as well as on the violations that were unknown to the submitter and those that he was unable to be aware of, and which were relevant for orderer's decision in the procedure of public procurement.
The Committee shall consider the evidence assessed as conducive to the clarification of the matter of the procedure, and/or lawful and correct decision-making.
Deadline for passing a decision
Article 141
The Committee shall be obliged to decide on the request for the protection of rights by passing a ruling within 15 days of having received the complete documentation.
The Committee shall be obliged to decide on the appeal against orderer's conclusion within 8 days of having received the appeal.
The deadline referred to in paragraph 1 of this Article may be extended in particularly justified cinstances, by 10 days at the most, of which the Committee shall inform the submitter of the request and the orderer.
The ruling referred to in paragraph 1 of this Article shall be forwarded to the orderer, the submitter of the request, and the selected bidder, where the request for the protection of rights is submitted after passing the decision on awarding the contract of public procurement,..
Obtaining the Data and Expertise
Article 142
Should the Committee find that the request for the protection of rights does not contain all the data referred to in Article 136, paragraph 1, and Article 143, paragraph 1 of this Law, it will invite the submitter of the request for the protection of rights to supplement the request.
The time limit for.supplementing the request for the protection of rights shall be three days after the day the submitter has received the request for supplementing the request.
Before reaching a decision, the Committee may request additional clarification from the ordere and/or submitter of the request, or from other participants to the procedure, opinions of experts or court experts, and may effect the insight into other documents in possession of the parties in the procedure of awarding the contract of public procurement, as well as to collect other data necessary for reaching the decision.
The Committee may require from other persons as well, the data and opinions that are necessary in performing its tasks.
The request for obtaining opinions and/or data shall include an assignment of reasons.
The expenses of the procedure
Article 143
The submitter of the request for the protection of rights shall be obliged to pay to the specified account of the budget of the Republic of Serbia the tax at the amount of 40,000 dinars, and/or 20,000 dinars - in case of a low value public procurement.
Each party to the procedure shall bear its own expenses incurred through its actions.
If the reqest for the protecton of rights is warranted, the orderer, after receiving a corresponding request from the submitter of the request for the protection of rights in writing, must refund the expenses of the submitter of the request for the protection of rights, that have been incurred on the ground of the protection of rights.
If the request for the protection of rights is unwarranted, the submitter of the request for the protection of rights, after receiving a corresponding request in writing, must refund the expenses of the orderer, that have been incurred on the ground of the protection of rights.
The parties must be precise in their requests in indicating the amounts of expenses required to be refunded.
The refund of expenses may be requested until the passing of decision of the orderer, and/or the Committee.
The matter of expenses shall be decided by the Committee. The Committee's decision shall be finally binding.
The Committee's decision
Article 144
The Committee may by its conclusion:
1) reject the request for the protection of rights if the request for the protection of rights and/or the statement on taking stand regarding the continuation of of the procedure before the Committee has ot been submitted in due time, or if the submitter of the request failed to complete the request within the specified time limit, and/or failed to supplement it in conformity with the invitation to supplement the request referred to in Article 142 of the present Law;
2) suspend the procedure on the ground of a written information on the withdrawal of the request for the protection of rights prio to passing the decision.
The Committee may by its ruling:
1) reject the request for the protection of rights as unwarranted;
2) confirm the conclusion and annul, in its entirety or partly,the procedure of awarding a contract of public procurement;
3) confirm the conclusion of the ordererr or annul the conclusion of the orderer and order further proceeding of the orderer regarding the content of the request for the protection of rights referred to in Aerticle 136, paragraph 1 of the present Law or regarding the preliminary verification of the request for the protection of rights referred to in Article 137 of the present Law, or regarding the continuation of the procedure after the passing of the decision specified in Article 139 of the present Law.
The Committee shall be obliged to provide an assignment of reasons for its decision.
The orderer shall be obliged to act in accordance with the elements of the Committee's decision.within 30 days from the day of having received the decision.
The Committee may require the orderer to submit a report and the documentation on conducting the procedure of awarding the contract of public procurement where a request for the protection of rights or a report and the documentation regarding the repeated procedure has been submitted.
The orderer shall be obliged to submit the report and the documentation referred to in the preceding paragraph within the time limit to be specified by the Committee, and which may not exceed 6 months from the day of receiving the Committee's decision.
Should the Committee find on the ground of the report and the documentation that irregularities were not eliminated, and/or the instructions of the Committee were not respected, or should the orderer fail to submit the report and the documentation in the specified time limit, it shall inform thereof the Government and the National Assembly.
No complaint may be lodged against the Committee's decision, nor may administrative proceedings be initiated against it.
The submitter may sue the orderer for damage before the competent court of law.
Nullity
Article 145
The contracts of public procurement shall be null and void:
1) if they have been concluded in contravention of the provisions of this Law regulating the manner and the procedure of awarding contracts of public procurement;
2) if the orderer has acted in contravention of the provisions to do with determining the value of public procurement per lot;
3) if they have been concluded in order to settle rights and obligations, without conducting the public procurement procedure;
4) if the orderer has awarded the contract under conditions different from those prescribed by this Law or to a bidder who has not been selected as the best one;
5) if the orderer awards the execution of the contract, or authorizes a third person to execute the contract, or a person who is not an orderer in accordance with the provisions of this Law, so as to avoid the application of this Law;
6) if the alterations of and additions to the original contract have been effected in contravention of the provisions of Article 87, 92 and 100 of this Law;
7) if they have been concluded in contravention of the Committee's decision, and
8) if they have been concluded without prior conducting the procedure of awarding public procurement, which the orderer was obliged to conduct in accordance with the provisions of this Law.
Violations
Article 146*
The orderer shall be fined for a violation in the amount of 100,000 to 1,000,000 dinars:
1) if he awards a contract of public procurement without conducting the prior procedure prescribed by this Law (Article 20);
2) if he commences the public procurement procedure before the prescribed conditions are fulfilled (Articles 24 and 25);
3) if the subject of a contract, contract requirements, technical specifications or other elements of the public invitation are adjusted to a specific bidder, or if a contract is awarded to a bidder who has participated in the preparation of the tender documentation or part thereof (Articles 6 and 36);
4) if he awards a contract in violation of the principle of the equality of bidders (Article 8);
5) if he fails to protect the data contained in the bid, in accordance with the degree of confidentiality (Articles 9-12 and 82);
6) if he fails to keep records or keep the documentation of public procurement (Article 12);
7) if he fails to forward to the Office the information on bids rejected due to attempts at bribery (Article 15);
8) if he fails to forward the tender documentation to everyone asking for it, in accordance with the public invitation (Articles 28 and 29);
9) if he fails to observe the deadlines for issuing a public invitation and submitting bids (Articles 59-68);
10) if he fails to publish the advertisements prescribed in Article 70 of this Law in "The Official Herald of the Republic of Serbia" or if he sends them to be published in other public media without having sent them to "The Official Gazette of the Republic of Serbia" for publication (Article 69);
11) if he fails to observe the technical norms, standards and other technical regulations currently in effect while preparing the tender documentation (Articles 35-44);
12) if he sets conditions and criteria for participation that are not in conformity with this Law, or if he alters the conditions and criteria after the publication of a public invitation without notifying the bidders accordingly (Articles 29 and 45-58);
13) if he fails to forward the data on the connducted public procurement procedures (Article 127);
14) if he concludes a contract of public procurement before the expiration of the time limit applicable to the submission of the request for the protection of rights referred to in Article 135, paragraph 2 of the present Law;
15) if he proceeds contrary to the provision of Article 134, paragraph 1 of the present Law regarding the suspension of the procedure where a request for the protection of rights has been submitted;
16) if he fails to submit the documentation referred to in Article 139, paragraph 3 of the present Law;
17) if he fails toexecute within the specified time limit the decision of the Committee referred to in Article 144 of the present Law.
The responsible official of the orderer too, shall be fined in the amount of 20,000 to 50,000 dinars for a violation referred to in paragraph 1 of this Article.
Article 147*
A bidder shall be fined for a violation in the amount of 100,000 to 1,000,000 dinars:
1) if he fails to notify the orderer of alterations to the bid (Article 46. paragraph 4);
2) if he provides inaccurate data concerning professional references (Article 47);
3) if he provides inaccurate data in the documents which prove that he meets the requirements set by the orderer (Articles 46 and 48).
The responsible official of the bidder too, shall be fined in the amount of 20,000 to 50,000 dinars for a violation referred to in paragraph 1 of this Article).
A natural person acting as a bidder shall be fined in the amount of 20,000 to 50,000 dinars for a violation referred to in paragraph 1 of this Article.
XI TRANSITIONAL AND CONCLUDING PROVISIONS
Article 148
On the day this Law comes into effect, the provisions of regulations that are in contravention of this Law shall no longer apply to public procurement of the Government, ministries, special organizations, public services and other organizations founded by the Republic.
The provisions of this Law shall apply to the public procurement of other entities considered to be orderers according to this Law as of January 1st 2003.
Public procurement procedures initiated by persons considered to be orderers according to this Law for which public invitations were issued before the coming of this Law into effect shall be conducted in accordance with the regulations that were in effect when they commenced.
Article 149
Until the law regulating the Republic Budget for 2003 comes into effect, public procurement whose estimated value is below 350,000 dinars shall be considered to be of low value in terms of this Law.
Article 150
The Office of Public Procurement shall commence work within one year of the day this Law comes into effect at the latest.
Until the Office referred to in paragraph 1 of this Article commences work, its work shall be performed by the Republican Office of Common Affairs, which shall inform the Government of its work once a month.
Article 151
Until the enactment of regulations referred to in Article 137, paragraph 7 of this Law , the Government shall be in charge of giving an approval to individual decisions on appointing experts.
Article 152
This Law shall come into effect on the eighth day after its publication in "The Official Herald of the Republic of Serbia".
Independent articles of the Law on Amending the
Law on Public Procurement
("The Offcial Herald of the RS", No. 55/2004)
Article 63
Applicable to the matters processed prior to coming into effect of the present Law shall be the provisions of the present Law, where the procedure has not been finally completed.
Article 64
The present Law shall come into effect on July 1, 2004.
Services
|
Category no. |
Object |
|
1. |
maintenance and repair |
|
2. |
land transport (except for railway transport), including transport in armored vehicles and courier services (except for postal transport) |
|
3. |
air transport of passengers and goods (except for postal transport) |
|
4. |
land and air postal transport (except for railway transport) |
|
5. |
telecommunications (except for voice telephony, radio telephony, paging and satellite services) |
|
6. |
financial services: - insurance services,- banking and investment services (except for procurement of financial services in connection with issuing, selling, buying or transferring securities or other financial instruments, and the services of the National Bank of Yugoslavia) |
|
7. |
computer and related equipment |
|
8. |
research and development (except for procuring research and development services where the research results are not used solely by the orderer for his own needs, provided that the orderer bears the costs in their entirety) |
|
9. |
accounting, auditing and bookkeeping |
|
10. |
market research and public opinion surveys |
|
11. |
management consulting (except for arbitration, settlement and similar services) |
|
12. |
architectural, engineering, urban planning and landscape architecture services; technical testing and analyses |
|
13. |
advertising |
|
14. |
building cleaning and real estate management services |
|
15. |
publishing and printing services on a part-time or contractual basis |
|
16. |
garbage removal, sanitary and other related services |
Services
|
Category no. |
Object |
|
17. |
hotel and restaurant services |
|
18. |
railway transport services |
|
19. |
river transport services |
|
20. |
additional and auxiliary transport services |
|
21. |
legal services |
|
22. |
personnel recruitment services |
|
23. |
Investigation and security services (except for transport in armored vehicles) |
|
24. |
education and professional training services |
|
25. |
health care and social services |
|
26. |
recreational, cultural and sports services |
|
27. |
other services |
Construction work
|
class |
Group |
Sub-group |
Description |
|
1 |
2 |
3 |
4 |
|
50 |
BUILDING AND CIVIL ENGINEERING |
||
|
500 |
General-type construction and civil engineering work (without special specifications) and demolition |
||
|
500.1. |
General-type construction and civil engineering work (without special specifications) |
||
|
500.2. |
Demolition |
||
|
501 |
Construction of objects and parts thereof |
||
|
501.1. |
General-type construction work |
||
|
501.2. |
Construction of eaves and roofs |
||
|
501.3. |
Construction of chimneys, furnaces and fireplaces |
||
|
501.4. |
Protection against water and damp |
||
|
501.5. |
Renovation and maintenance of external walls (refilling brick joints with mortar, cleaning, etc.) |
||
|
501.6. |
Raising and dismantling scaffolding |
||
|
501.7. |
Other specialized activities in connection with construction work, including carpentry |
||
|
502 |
Civil engineering: building roads, bridges, railways, etc. |
||
|
502.1. |
General-type civil engineering work |
||
|
502.2. |
Earthwork |
||
|
502.3. |
Building bridges, tunnels and shafts; drilling |
||
|
502.4. |
Hydraulic engineering and water management (rivers, canals, ports, tributaries, dams, etc.) |
||
|
502.5. |
Building roads, railway lines, airports and sports facilities |
||
|
502.6. |
Specialized civil engineering work in connection with water (irrigation, land drainage, waterworks, wastewater removal, sewage, etc.) |
||
|
502.7. |
Other types of civil engineering work, including specialized activities in other areas of civil engineering |
||
|
503 |
Installations relating to construction |
||
|
503.1. |
General-type industrial work |
||
|
503.2. |
Installations for supplying gas and water, and sanitary equipment installations |
||
|
503.3. |
Heating and ventilation installations (central heating, air conditioning, ventilation) |
||
|
503.4. |
Isolation work |
||
|
503.5. |
Electrical installations |
||
|
503.6. |
Installation of aerials, lightning conductors, telephones, etc. |
||
|
504 |
Finishing construction work |
||
|
504.1. |
General-type finishing construction work |
||
|
504.2. |
Face and stucco work |
||
|
504.3. |
Interior woodwork (including laying parquet floors) |
||
|
504.4. |
Painting, glazing and wallpapering |
||
|
504.5. |
Laying tiles and other floor and wall covering |
||
|
504.6. |
Other types of finishing and additional construction work (installation of fireplaces, etc.) |
PUBLISHER’S NOTE
* Offence fines defined by the present Law have been amended by the Law on Amendments of the Law on Defining Business Offence and Offence Fines ("Official Herald of the Republic of Serbia", No.101/2005).