REGULATIONON STRATEGIC PARTNERSHIP("Off. Herald of RS", Nos. 129/2014, 75/2015, 16/2016 and 108/2016) |
Article 1
This regulation governs the model of strategic partnership as a model of privatization through institutional relationship of domestic or foreign legal persons with the subject of privatization i.e. the Republic of Serbia (hereinafter: Strategic Partnership).
Article 2
The model of strategic partnership shall be implemented through:
1) Joint venture through the establishment of a new company founded by the Republic of Serbia and the strategic investor;
2) Recapitalization of the existing subject of privatization.
The Government makes a decision on the model of strategic partnership, which includes:
1) The manner of implementation of the strategic partnership, namely: a joint venture through the establishment of a new company or a recapitalization of the existing subject of privatization;
2) The qualification requirements that must be met by a domestic or foreign legal person that executes a strategic partnership contract with the subject of privatization i.e. the Republic of Serbia (hereinafter referred to as the Strategic Investor);
3) The essential elements of the strategic partnership contract (type, amount and term of share payment by the Strategic Investor) and may contain other provisions (for ex. on investment obligation, obligation of conducting business and employment, collaterals for proper performance of contractual obligations, conditions, manner and legal consequences of the contract termination);
4) The criteria for the ranking of bids while choosing a Strategic Investor;
5) When the Strategic Partnership is deemed to be finalized (transaction closing);
6) The contents of the Strategic Partnership application (hereinafter: the Application);
7) The deadline for submitting applications for the strategic investor contest;
8) The amount of the deposit and the cost of privatization documents;
9) Other issues of importance for the implementation of Strategic Partnership.
The government makes a decision on establishment of the Commission for the implementation of the model of strategic partnership (hereinafter referred to as: the Commission).
The ministry in charge of economy proposes to the Government a decision referred to in paragraph 2 of this Article, based on the documentation, and other data, received from competent authorities and organizations, from the subject of privatization and the potential investor.
Article 3
The model of strategic partnership is implemented by public invitation to bid (hereinafter: the procedure of public invitation to bid).
Article 4
The procedure of public invitation to bid includes:
1) Preparation;
2) Submission and receipt of bids for a Strategic Investor (hereinafter: the Bid);
3) Opening of the Applications and evaluation of Bids;
4) Negotiations with the selected bidder;
5) Conclusion of the strategic partnership contract;
6) Closing of the transaction.
Article 5
The procedure of public invitation to bid is conducted by the Commission which suggests to the Ministry responsible for economic affairs which strategic partner to choose.
The procedure referred to in paragraph 1 of this Article is organized by the ministry in charge of economy in accordance with the law and this regulation.
The ministry in charge of economy provides administrative and technical support to the Commission.
The ministry in charge of economy may engage advisors for conducting and assisting in the organization of the procedure and the selection of the most favorable bidder.
Article 6
The Commission consists of five members.
The following shall be appointed to the Commission: one representative each, of the subject of privatization, the representative union in the subject of privatization - the employer, but in the event that no representative union exists at the employer, one representative of the local government unit where the headquarters of the subject of privatization are located; as well as three representatives of the government authorities of which one representative of the ministry responsible for economic affairs, one of the ministry in charge of finance and one of the ministry responsible for the activities of the subject of privatization.
A person who owns at least 5% of the capital of the subject of privatization may not be a member of the Commission.
Article 7
In implementing the procedure of the public invitation to bid, the Commission:
1) Opens and determines the timeliness and completeness of the Application;
2) Evaluates the Bids;
3) Suggests the decision to the Government on Ranking;
4) Negotiates with the participant in the procedure whose Bid was declared the most favorable (hereinafter referred to as: the Selected Bidder);
5) Performs other duties in accordance with this regulation.
Article 8
The Commission may adopt decisions if a majority of all members is present.
The Commission adopts decisions by majority vote of all members.
In the case of an equal division of votes, the vote of the president of the Commission shall be decisive.
The Commission adopts rules of procedure, which regulate in detail the issues relevant to the work of the Commission.
The Commission delivers to the ministry in charge of economy a report on the completed procedure, as well as a proposal of the strategic partnership contract if the negotiations are successfully concluded.
Article 9
Preparation of the procedure of public invitation to bid includes:
1) Preparation of the privatization documentation;
2) Publication of a public call for the choice of a strategic investor.
Article 10
The privatization documentation includes:
1) Information memorandum about the subject of privatization that includes:
- Basic information about the subject of privatization;
- Information on the condition of assets and liabilities (overview of real estate, overview of the most important equipment, overview of the property and claims which are the subject of legal proceedings with the amount of value in dispute, overview of liabilities that are subject to litigation with the amount of value in dispute, overview of the property lien and overview of property of other legal persons over which the subject of privatization holds lien);
- Analysis of the hitherto operations of the subject of privatization (review of organizational structure with number of employees, age and qualification structure; overview of the total revenue per basic types of products or services, market structure; overview of operating costs);
- Status documentation;
- Property documentation;
- Financial statements for the last three years, together with the auditor's report if there is an obligation to make an audit report;
- Information on capital and property appraisal;
- Statement by the responsible person on the accuracy and comprehensiveness of the data.
2) Instructions to Bidders, which includes: application form, terms and conditions for participation in the procedure, the description of the procedure and deadlines for implementation, requirements for preparation of comprehensive analysis of the operations of the subject of privatization (Due Diligence), time and manner of the tour of the subject of privatization, the criteria for ranking the Bid, a copy of this Regulation and other information in accordance with this Regulation (hereinafter: Instructions to Bidders);
3) Other information and documentation necessary for implementation of the procedure.
Privatization documents referred to in paragraph 1, item 1) of this Article shall be prepared by the subject of privatization and submitted to the ministry in charge of economy within 30 days of the day the ministry in charge of economy notified the subject of privatization on the model of privatization in accordance with the law.
Privatization documents referred to in paragraph 1, items 2 and 3 of this Article shall be prepared by the ministry in charge of economy.
The registered agent of the subject of privatization shall be responsible for the accuracy and comprehensiveness of the submitted privatization documentation referred to in paragraph 1, item 1) of this Article, under criminal, moral and tort responsibility.
Article 11
The ministry in charge of economy publishes a public call for the choice of the strategic investor (hereinafter: Public Call), on the basis of the Government's decision referred to in Article 2 of this Regulation, and after preparing the privatization documentation.
Public call shall include:
1) Business name and registration number of the subject of privatization;
2) Information on the structure and value of capital;
3) Manner of implementation of strategic partnership;
4) Qualification requirements that must be fulfilled by a Strategic Investor;
5) Deadline for and manner of filing the application;
6) Any other information relevant to the implementation of the procedure.
The ministry in charge of economy announces Public Call in the media and in at least one daily highly circulated newspaper distributed throughout the territory of the Republic of Serbia, and on the internet page of the ministry in charge of economy, no later than 30 days before the day fixed for submission of applications.
Purchase of Privatization Documentation
Article 12
Privatization documentation shall be sold to the legal persons that file a request for the purchase of documentation (hereinafter: the Participants) at the price set by the Government in the decision referred to in Article 2 of this Regulation.
Participants shall conclude a confidentiality agreement with the Commission and pay the price referred to in paragraph 1 of this Article prior to takeover of documentation.
The agreement referred to in paragraph 2 of this Article shall be drafted by the ministry in charge of economy.
IV SUBMISSION AND RECEIPT OF APPLICATIONS
Article 13
The Application shall be submitted to the ministry in charge of economy in a sealed envelope in the time period specified in the Government's decision referred to in Article 2 of this Regulation, which may not be shorter than 30 days from the day of announcement of the Public Call.
The application shall contain:
1) Envelope marked: "Information about the Bidder";
2) Envelope marked: "Bid".
The envelope marked "Information about the Bidder" shall include:
1) Certificates and declarations that the Bidder meets the requirements prescribed by the law governing privatization;
1a) Identification information about the Bidder;
2) Proof of paid deposit or bank guarantee;
3) Evidence of compliance with the qualification requirements;
4) Other information or documentation as provided by the instruction to bidders, or in the Public Call.
The envelope marked "Bid" includes the bid of the Strategic Investor.
Applications shall be in accordance with the Government's decision referred to in Article 2 of this Regulation, with the Public Call and the instructions to bidders.
Article 14
If the Application is sent by mail, the day of sending the Application by mail shall be considered as the day of submission to the ministry in charge of economy.
Article 15
The Applicant pays the deposit in money or delivers a bank guarantee to the ministry in charge of economy (hereinafter: the Deposit), in accordance with the instructions to bidders.
Article 16
The procedure of submission and receipt of Applications, the method of keeping records of received Applications, documentation necessary for identification of the participants in the procedure, retention of documents, as well as the manner and terms of deposit return are determined by the instructions to bidders.
V OPENING OF APPLICATIONS AND EVALUATION OF OFFERS
Article 17
Commission opens the Applications and determines their timeliness and completeness in accordance with the instructions to bidders.
The opening of Applications may be attended by the participants, their representatives or proxies and other interested persons.
Late Applications shall not be considered.
The Commission shall render a decision to reject the late Application.
The Commission may leave additional term to the participant to complete the documentation to be submitted in an envelope: "Information about the Bidder".
If the participant fails to complete the documentation in accordance with paragraph 5 of this Article, the Commission shall reject the Application and inform the participant about the rejection of the Application.
The Commission approves the Application which fulfills the requirements in accordance with the Public Call, this Regulation and instructions to bidders.
If no Application meets the prescribed requirements, the Commission shall prepare a report on that and submit it through the ministry in charge of economy to the Government.
The Government, on the basis of the report referred to in paragraph 8 of this Article, shall declare the procedure unsuccessful.
Article 18
The envelope marked as "Bid" will be opened only if the Commission finds that the participant meets the qualification requirements and that the Application is timely and complete.
Article 19
The Commission adopts a decision to determine the proposal of the Ranking List by applying the criteria laid down in the decision of the Government referred to in Article 2, paragraph 2, item 4) of this Regulation.
The most favorable Bid shall be ranked in the first place of the proposed Ranking List.
In case only one participant applies during the procedure whose bid the Commission finds that it meets the requirements and criteria of the procedure, or when after opening the Bids, and before adoption of the decision on the proposed Ranking List, due to the withdrawal of other participants, only one participant remains, the Commission shall prepare a report on that which shall be submitted to the Government through the ministry responsible for economy.
Article 20
The Government, on the basis of the proposed Ranking List referred to in Article 19, paragraph 1 of this Regulation, shall adopt a decision to determine the Ranking List and proclaims the Selected Bidder.
The government, on the basis of the report referred to in Article 19, paragraph 3 of this Regulation shall adopt a decision to open negotiations with one participant who is proclaimed as the Selected Bidder or adopts a decision to declare the procedure as unsuccessful.
Article 21
Decision of the Government under Article 20 of this Regulation shall be published on the web page of the Government.
Within the term of two days of the day of adoption of the decision of the Government under Article 20 of this Regulation, the ministry in charge of economy shall notify in writing all ranked participants, or the only participant, and it shall invite the Selected Bidder to start negotiating in order to conclude the strategic partnership contract.
VI NEGOTIATIONS AND DECISION ON THE CONCLUSION OF THE STRATEGIC PARTNERSHIP CONTRACT
Article 22
The Commission negotiates with the Selected Bidder and, at the latest within 120 days from the day the decision referred to in Article 20 of this Regulation was rendered, submits to the ministry in charge of economy the report on completion of the procedure, as well as the proposed strategic partnership contract with the opinion of the competent organization for the prevention of money laundering on the absence of impediments on the side of the Strategic Investor for the conclusion of the contract, if the negotiations were successfully concluded.
The ministry in charge of economy, within 15 days of receipt of the report that the procedure were completed and the proposed strategic partnership contract referred to in paragraph 1 of this Article, submits to the Government the report on the completed procedure and the proposed strategic partnership contract, if the negotiations were successfully concluded, in order to adopt a decision on the conclusion of the strategic partnership contract.
The Government’s decision to conclude the strategic partnership contract shall be published on the web page of the Government and submitted to the ministry in charge of economy within five days of its adoption.
The ministry in charge of economy shall inform the Strategic Investor, or the second ranked participant, about the Government's decision to conclude the strategic partnership contract, within five days of the day of receipt of the Government’s decision.
If within the period referred to in paragraph 1 of this Article, the negotiations are not successfully ended, the Commission submits to the ministry in charge of economy a report on completion of the procedure.
The ministry in charge of economy within the term of 15 days of the day of receipt of the report referred to in paragraph 5 of this Article submits to the Government a report on the completed procedure, in order to adopt a decision to declare the procedure as failed.
VII CONCLUSION OF THE STRATEGIC PARTNERSHIP CONTRACT
Article 23
The strategic partnership contract is an agreement on the establishment of a new company, as well as an agreement on recapitalization of the existing subject of privatization.
The strategic partnership contract shall be concluded within 15 days from the day of delivery of the notice to the strategic investor about the Government's decision, in accordance with Article 22, paragraph 4 of this Regulation.
The period referred to in paragraph 2 of this Article may be extended by the Government, if necessary.
The strategic partnership contract which is implemented through recapitalization of the existing subject of privatization shall be signed by the representative of the Republic of Serbia, Strategic Investor and the subject of privatization.
The strategic partnership contract which is implemented through a joint venture by establishment of a new company shall be signed by the representative of the Republic of Serbia and the Strategic Investor.
The strategic partnership contract shall be deemed concluded when signed by the contractual parties and it shall be certified by the authority responsible for the verification of signatures.
The strategic partnership contract shall be published on the web page of the Government and the ministry in charge of economy, within three days of the day of signing.
Article 24
Unless the Selected Bidder concludes the Contract on Strategic Partnership, it shall be deemed that he withdrew the Bid.
In the event under paragraph 1 of this Article, the Government may adopt a decision to start negotiations with the second ranked participant.
If even the second ranked participant fails to conclude the Contract on Strategic Partnership, the Government shall render a decision on further procedure.
Loss of the Right to Deposit Refund
Article 25
The participant shall lose the right to deposit refund if:
1) He withdrew the Bid, or dropped the Bid,
2) He supplied the documentation in the Application, which turned out to be false, invalid or untrustworthy,
3) He failed to supplement the Application in accordance with the Article 17 paragraph 5 of this Regulation,
4) He is declared as the Strategic Investor, and is invited to, but fails to execute the Contract on Strategic Partnership within the prescribed period, or
5) He is declared as the Strategic Investor, but according to the opinion of the competent organization for prevention of money laundering there are some obstacles preventing the contract to be concluded, or
6) In other cases defined by the Instruction to Bidders.
Article 26
The deposit shall be refunded to the Strategic Investor in accordance with the Contract on Strategic Partnership.
The deposit shall be refunded to the participant within 15 days from the day of adoption of the decision that cancels his Application or rejects his Bid.
In case of multiple participants, the participant’s deposit shall be refunded within 15 days from the day of adoption of the Government’s decision on determining the Ranking list, except to the second ranked participant whose deposit shall be kept until the closing of the transaction in accordance with the Contract on Strategic Partnership.
In case the procedure is annulled, the participant’s deposit shall be refunded within 15 days of the day of adoption of the Government’s decision on annulment of the procedure.
No interest shall be charged to the timely refunded deposit.
The deposit shall not be refunded to the participant who lost the right of deposit refund in accordance with the Article 25 of this regulation.
Declaring the Procedure Unsuccessful and Annulment of the Procedure
Article 27
The Government shall also declare the procedure unsuccessful in following cases:
1) If no Application has been submitted,
2) If none of the Applications fulfills the criteria,
3) If none of the Bids fulfils the criteria,
4) If the Contract on Strategic Partnership is concluded neither with the Strategic Investor, nor with the second ranked participant,
5) If the closing of the transaction does not occur in accordance with the Contract on Strategic Partnership,
6) In other cases defined by the Instruction to Bidders,
7) In other cases in line with this Regulation.
The Government may render a decision to annul the procedure at any time, up until the execution of the Contract on Strategic Partnership.
The decision on declaring the procedure unsuccessful, or on cancellation of the procedure, shall be published on the internet page of the Government on the day it was rendered, and shall be delivered to the participant within five days of the day of its rendering.
VIII CONTROL OF PERFORMANCE OF CONTRACTUAL OBLIGATIONS
Article 28
The ministry in charge of economy controls the fulfillment of contractual obligations of the Strategic Investor provided by the strategic partnership contract.
Control under paragraph 1 of this Article shall be executed on the basis of authorized auditor's report delivered to the ministry in charge of economy by the Strategic Investor during the contract’s effectivity, and on the basis of the appraisal of the expert witness for the subject of investment.
The ministry in charge of economy shall make a report on the performed control, determine the fulfillment of contractual obligations and propose the appropriate measures to the Government.
The Strategic Investor and the person authorized to represent the subject of privatization shall be responsible under criminal and tort responsibility for the accuracy and completeness of documentation and information submitted to the ministry in charge of economy, for implementation of the process of control of performance of contractual obligations.
Article 29
The ministry in charge of economy conducts control of fulfillment of obligations of the Strategic Investor assumed under the strategic partnership contract, in a timetable stipulated in the strategic partnership contract.
If the contract does not stipulate timetable of control implementation, the control shall be conducted twice a year.
Commission for control of the execution of obligations of the buyer, i.e. Strategic Investor from the concluded contracts in the privatization process considers the report on the performed control and gives an opinion on the executed obligations.
Article 30
This Regulation shall enter into force on the day following the day of its publication in the "Official Herald of the Republic of Serbia".