REPUBLIC OF SERBIA Negotiating Group for the Chapter 5-Public Procurement. Bilateral Screening: Chapter 5 PRESENTATION OF THE REPUBLIC OF SERBIA
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1 REPUBLIC OF SERBIA Negotiating Group for the Chapter 5-Public Procurement Bilateral Screening: Chapter 5 PRESENTATION OF THE REPUBLIC OF SERBIA Brussels, 13 th May 2014
2 PROTECTION OF RIGHTS IN PUBLIC PROCUREMENT PROCEDURES
3 Legal Framework Public Procurement Law (Official Gazette of RS, No. 124/12; hereinafter: PPL) Law on Public Private Partnership and Concessions (Official Gazette of RS, No. 88/11) Law on General Administrative Proceedings (Official Gazette of FRY, No. 33/97, 31/01, Official Gazette of RS, No. 30/10) Law on Administrative Disputes (Official Gazette of RS, No. 111/09) Law on Minor Offences (Official Gazette of RS, No. 65/13)
4 Republic Commission for Protection of Rights in Public Procurement Procedures (Articles 140 and 141 PPL) Republic Commission for Protection of Rights in Public Procurement Procedures is an autonomous and independent body of Republic of Serbia, ensuring the protection of rights in public procurement procedures President and six Members, appointed to a five-year period President and Members of Republic Commission are appointed by the National Assembly after a public competition is conducted Conditions for appointment: Relevant work experience in the field of public procurement Meeting the requirements for appointment of a Primary Court judge (4 Members and President) The obligation to submit the report on its operations every six months (contents of it specified by the Law)
5 Competences of the Republic Commission (Article 139 PPL) Decides on requests for protection of rights in all public procurement procedures (equivalent to revision of public procurement procedures as in Directive EU 2007/66) Decides in accordance with special authorities: Monitoring of the implementation of its decisions Imposing of fines Motion for dismissal of responsible persons Annulment of public procurement contracts Conducting of minor offence proceedings in the first instance Prohibition of abusing request for the protection of rights
6 Organizational Chart of the Republic Commission REPUBLIC COMMISSION (62 EMPLOYEES) Division for Analytics, Public Relations and Cooperation with State Bodies and Other Institutions SECRETARY CLERK DEPARTMENT for the Protection of Rights in Public Procurement Procedures DEPARTMENT for Special Authorities of the Republic Commission DEPARTMENT for General Affairs Department for Expert Operations in the Protection of Rights in Public Procurement Procedures Group for Monitoring of Implementation of Decisions, Controling of Implementation of Decisions with Contracting Authorities and Preventing the Abuse of Requests for the Protection of Rights Division for Minor Offence Proceedings Group for Imposing Fines Group for Annulment of Public procurement Contracts and Initiation of Proceedings for Annulment of Public Procurement Contract Group for Legal and Human Resource Affairs Group for Financial and Economic Affairs Clerk s Office with Archive
7 Protection of Rights Procedure - Capacity to File Request for Protection of Rights (Article 148 PPL) - The protection of rights procedure is initiated by submitted request for protection of rights, which may be filed against any action of the contracting authority in a public procurement procedure A request for the protection of rights may be submitted by : Bidder, applicant, candidate(participants in a public procurement procedure) or interested person Trade Association Public Procurement Office State Audit Institution Public Attorney Civil Supervisor
8 Protection of Rights Procedure - Fees for Submitting Request for Protection of Rights (Article 156 PPL)- RSD 15,000 (EUR 170) in a procedure initiated on complaint against a conclusion of the Public Procurement Office RSD 40,000 (EUR 350) in a low-value public procurement procedure and in negotiated procedure without invitation to bid RSD 80,000 (EUR 700) if a request for the protection of rights is filed before opening of bids or if the estimated value of public procurement or price offered by the bidder to whom a contract was awarded does not exceed RSD 80,000,000 (EUR 700,000) 0.1 % of the estimated value of a public procurement or price offered by the bidder to whom a contract was awarded, if that value exceeds RSD 80,000,000 (EUR 700,000)
9 Protection of Rights Procedure - Deadlines and the Manner of Submission of Requests for Protection of Rights (Article 149 PPL) - Decisions on requests for the protection of rights are made by: 1st instance: Contracting Authority 2nd instance: Republic Commission Deadlines for submission of requests: 7 days before expiry of the deadline for submission of bids 3 days before expiry of the deadline for submission of bids 10 days from the day decision was received Challenging the Invitation to Bid or Tender documents Low-value procedure and qualification procedure Decision on awarding of a contract, cancelling of procedure, recognition of qualification, conclusion of a framework agreement 5 days from the day decision was received Low-value procedure 10 days from the day the decision on awarding the contract is published In negotiated procedure without invitation to bid
10 Protection of Rights Procedure - First Instance: Contracting Authority (Article 153 PPL) - Within 5 days from the day it received a timely submitted request for the protection of rights, the contracting authority: Accepts the request for the protection of rights or Submits a respond to the request for the protection of rights and all documents from the public procurement procedure to the Republic Commission to decide upon Request for the protection of rights suspends further activities of contracting authority in public procurement procedure, until decision is made upon submitted request for the protection of rights (Article 150 PPL)
11 Protection of Rights Procedure - Second Instance: Republic Commission (Article 154 and 157 PPL) - Republic Commission: Before it makes a decision, may require additional documents, data, explanations and opinions from the contracting authority, claimant or other participants in the procedure and the Public Procurement Office Decides on all allegations within the scope of the submitted request for the protection of rights Ex officio establishes whether all legal requirements for conducting of a public procurement procedure have been met; whether there was a violation of the law, due to which the contract may be annulled, or that the contract is null and void
12 Protection of Rights Procedure - Second Instance: Republic Commission (Article 146 PPL) - The manner of operations of the Republic Commission is specified by the Law and the Rules of Procedure The manner of operations of the Republic Commission: Panels consisting of three members Procedure for the protection of rights (possibility to engage court experts) Special authorities General session (President and all Members) Rules of Procedure Principal legal position Reports on work Financial statements Other acts and documents The Republic Commission publishes on its official website all adopted decisions and other acts
13 Protection of Rights Procedure - Second instance: Republic Commission (Article 157 PPL) - The Republic Commission makes a decision within 20 days: Makes conclusions on procedural issues Competence Timeliness Capacity to submit request Timeliness of requests for the protection of rights Makes decisions on merits of the case Annuls a public procurement procedure, fully or partially Refuses requests for the protection of rights Decides on costs of the procedure Decisions of the Republic Commission are published on the Public Procurement Portal and on the official website Against a decision of the Republic Commission a complaint to Administrative Court may be submitted, which does not suspend the execution of the decision
14 Special Authorities - Monitoring of the Implementation of Decisions (Articles 160 and 161 PPL) - The Republic Commission monitors and controls implementation of its decisions The contracting authority must comply with the orders from the decision of the Republic Commission and within the deadline specified in it The Republic Commission may require the contracting authority to submit a report, documents and statements of representatives concerning implementation of a decision and may inspect the contracting authority Republic Commission may impose a fine if contracting authority fails to comply with the orders from the decision
15 Special Authorities - Imposing of Fines (Article 162 PPL) - The Republic Commission may impose the following fines for procedural misconduct in the procedure of the protection of rights: To the contracting authority in the amount from RSD 80,000 to RSD 1,000,000 (EUR 700 8,700) To the responsible person of the contracting authority in the amount from RSD 20,000 to RSD 80,000 (EUR ) 5 legal bases for imposing of a fine If a procedural misconduct occurs more than once, the Republic Commission may propose the dismissal of the responsible person
16 Special Authorities - Annulment of contracts (Article 163 PPL) - The Republic Commission may annul a public procurement contract A request for annulment of a contract may be filed by a claimant or an interested party within the following deadlines: 30 days of the date of learning of the reason for annulment (subjective deadline) No later than a year from the day the contract was concluded (objective deadline) 5 legal bases for annulment of contracts
17 Special Authorities - Minor Offence Proceedings (Article 165, 169 and 170 PPL) - The Republic Commission conducts minor offence proceedings in the first instance The Public Procurement Law prescribes 23 minor offences for the contracting authority (and the responsible person) and 5 minor offences for bidders In minor offence proceedings, fines imposed range from RSD 80,000 (EUR 700) to RSD 1,500,000 (EUR 13,000) Minor offence proceedings are initiated upon request of : Public Procurement Office State Audit Institution Other authorized institution Against the decision made in minor offence proceedings in the first instance, an appeal may be submitted to Higher Misdemeanor Court.
18 Special Authorities - Prohibition of Abusing Request for the Protection of Rights (Article 164 PPL) - It is prohibited to file request for the protection of rights for purposes other than those for which that right has been recognized The Republic Commission shall ex officio pay attention to abusing of request It shall be assumed that the claimant, whose three requests for the protection of rights have been refused within six consecutive months, has abused the request, unless proved otherwise The Republic Commission will impose a fine to the claimant whom it finds to have abused the request
19 Statistics on Operations of the Republic Commission * Resolved cases (Request for the protection of rights) Refused requests Rejected requests Fully annulled procedure Partially annulled procedure Suspended procedure Dismissed statement Returned to the contracting authority for handling Resolved otherwise TOTAL *Source: Commission's annual report submitted to the National Assembly
20 Statistics on Operations of the Republic Commission * Resolved cases (All initially submitted acts) Requests for protection of rights Other initially submitted acts TOTAL *Source: Commission's annual report submitted to the National Assembly
21 Number of Administrative Disputes Initiated against Decision of the Republic Commission * Administrative Court Number of administrative disputes *Source: Commission's annual report submitted to the National Assembly
22 Decisions of the Administrative Court * Decisions of the Administrative Court Confirmed decisions of the Republic Commission Adopted complaints TOTAL % 87% 2013 Confirmed decisions Adopted complaints *Source: Commission's annual report submitted to the National Assembly
23 Further Activities of the Republic Commission Continuation of coordination and cooperation with other competent authorities in the country Improvement of international and particularly regional cooperation Improved availability of information to the public concerning the work of the Republic Commission: Software application for more efficient search of decisions of the Republic Commission published on its official website Presentation of the relevant jurisprudence of the Republic Commission through a newsletter to as many interested persons as possible Publishing of collections of typical decisions and pprincipal legal positions
24 REPUBLIC OF SERBIA Negotiating Group for the Chapter 5-Public Procurement THANK YOU FOR YOUR ATTENTION
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