PUBLIC PROCUREMENT ACT (ZJN-1)

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1 Page 1 of 71 NATIONAL ASSEMBLY Public Procurement Act (ZJN-1) Pursuant to Article 107 (1), second indent, and Article 91(1) of the Constitution of the Republic of Slovenia I hereby issue THE ORDER to declare the Public Procurement Act (ZJN-1) which was adopted by the National Assembly of the Republic of Slovenia at its session of 25 April No /00 Ljubljana, 5 May President of the Republic of Slovenia Milan Kuèan, s. DRAFT VERSION! PUBLIC PROCUREMENT ACT (ZJN-1) The official language of the documents translated herein is Slovene. In case of any doubt or misunderstanding, the Slovene version should therefore be considered final. 1. GENERAL PROVISIONS 1.1. Subject of Act Article 1 (Subject of Act) (1) This Act lays down the compulsory activities of the contracting entities and tenderers in the award of public supply, works and service contracts. (2) This Act also lays down the compulsory activities of contracting entities and tenderers in

2 Page 2 of 71 the award of public supply, works and service contracts in water, energy, transport and telecommunications sectors. (3) This Act regulates the manner of recording statistical data concerning the award of public contracts. (4) This Act regulates the establishment and competence of the Public Procurement Office Exceptions in awarding contracts which are not subject to this Act Article 2 (Exceptions which are not the subject of public contracts) This Act does not apply to the following contracts: 1. those awarded to an organisation which pursuant to this Act is a contracting entity itself and is founded by a special regulation concerning the provision of services which are the subject of public procurement with an exclusive right to provide such services, 2. those to which other rules on procurement apply and which are awarded: a) under international agreement covering supplies, works or services or public design contests which are intended for joint implementation or exploitation of a project by the countries or organisations which concluded such agreement; the European Commission shall be notified of the conclusion of such agreement, b) to undertakings in Slovenia or in third countries in accordance with an agreement on the stationing of troops, c) pursuant to a special procedure of an international organisation, 3. for ensuring fundamental conditions for life at natural or other disasters in accordance with the regulations on the protection against natural or other disasters, 4. for the purchase of armament, military equipment and special operational technique, or other procurement of confidential nature as prescribed by governmental rules. Contracting entity who performs such procurement shall report to the government concerning these supplies at least once in a year Definition of terms Article 3

3 Page 3 of 71 (Terms Used in this Act) (1) For the purposes of this Act, the terms shall have the following meaning: 1. A contracting entity shall mean: a) a direct budget user, b) an indirect budget user, c) other legal entities founded by a direct or indirect budget user with a specific purpose of meeting needs in the general interest; at least half of their management or supervisory board members are appointed by a direct or indirect budget user, è) a public undertaking and its affiliated companies in which a direct or indirect budget user or another contracting entity under this Act holds a majority share of the subscribed capital or controls the majority of the votes attached to shares issued by the undertaking, or can appoint more than half of the members of the company s management or its supervisory board, d) an affiliated undertaking which is an independent legal entity and is either by virtue of management or in some other way associated with the contracting entities listed under subitems a), b), c) and è) so that due to the stated links they jointly shape the business policy and act harmoniously with the purpose of achieving common business goals or so that one person has a possibility to direct the other or to exercise substantial influence on the other in decision-making, financing and doing business, or so that the operation of one entity or its business results may substantially influence the operation or business results of the other contracting entity; 2. public procurement shall mean the set of acts performed by the contracting entity aimed at the procurement of goods, services or works under this Act; 3. a supply, service or works contract shall mean a pecuniary contract concluded in accordance with the procedure performed under this Act in writing between a contracting entity and a supplier, provider or contractor, having as its subject the procurement of goods, services or works; 4. a tenderer shall mean a supplier, provider or contractor who submits a tender and may be a legal or a natural person; 5. a candidate shall mean a person who is invited by the contracting entity to submit a tender after his/her qualification has been established; 6. an open procedures shall mean the procedures in which all those interested may submit tenders; 7. a restricted procedure shall mean a procedure in which only those invited by the contracting entity may submit tenders after their qualification has been established (the candidates); 8. a negotiated procedure shall mean a procedure in which contracting entity negotiates with

4 Page 4 of 71 suppliers, providers or contractors its choice and terms of the contract; 9. a design contest shall mean a procedure used in the award of service contract for physical or urban planning design, or designs in the fields of architecture, engineering or data processing where the design is selected by a previously appointed jury regardless of any award of prize for the selected design; 10. an abnormally low price - a price from the tender which is so low that it awakes doubt in contracting entity as to the possibility to perform the contract; 11. an award criterion - element used to evaluate, compare or assess tenders; 12. a participation condition is an element which shall be entirely fulfilled in the tender in a way as defined in the contract notice and documents and has exclusive nature; 13. qualification requirement is a requirement from the contract notice and documents which is important for the performance of contract and shall be entirely fulfilled in the tender; it is a prerequisite for the recognition of tenderer s capability; 14. qualification procedure is the method of performing the first phase of restricted procedure in the award of public contracts in water, energy, telecommunication and transport fields; 15. application to participate shall be an application that may be addressed to the contracting entity by any interested person under a qualification procedure; 16. updating award criteria and participation conditions - adjustment of award criteria and participation conditions occasionally done by the contracting entity considering the market conditions, development and other circumstances. Contracting entity may update the award criteria and participation conditions only in a qualification procedure; 17. A regular tender shall be a tender which is submitted to the contracting entity until the expiration of the deadline as defined in the contract notice and documents; 18. An adequate tender shall be a tender which is submitted on time and which is found, after the opening of tenders and based on the review and evaluation, to entirely fulfil all requirements from the contract documents; 19. An appropriate tender is a tender which is submitted on time and which is found, after the opening of tenders and based on the review and evaluation, to entirely correspond to all criteria, conditions and technical specifications; 20. An eligible tender is a tender which is submitted on time and which is found, after the opening of tenders and based on the review and evaluation, to entirely correspond with the award criteria, participation conditions and the eventual qualification requirements; 21. A discount on the tender price shall be the method of determining the tender price which can be offered by the tenderer only when the contract is awarded by lots, and shall not be treated by the contracting entity as an element of additional privilege; 22. A special drawing right - calculation unit at the International Monetary Fund. It is applied in

5 Page 5 of 71 financial transactions of the International Monetary Fund and as a measure of value. It is composed of a basket of currencies based on the movement of exchange rates (EUR, JPY, GBP, USD), The SDR value shall be calculated on a monthly basis. (2) On the proposal of the minister of finance, the government determines a list of contracting entities bound to award public contracts under this Act. This list shall be reviewed at least once every year. In the case of ambiguity, the government decides which are the entities this Act applies to Basic principles of public procurement Article 4 (The principles of cost-effectiveness and efficiency in the use of public funds) By the execution of the public contract award procedure and by the selection of tender, contracting entity shall ensure that public funds are used in the most cost-effective manner with respect to the purpose and subject of the public procurement. Article 5 (The principle of ensuring fair competition among tenderers) (1) Contracting entity may not restrict fair competition among tenderers, and in particular not any likely tenderers by unreasoned use of restricted procedure or with the use of discriminatory award criteria and shall act in accordance with the competition rules. (2) The contracting entity that prepared the contract documents or its parts shall not participate as tenderer or sub-contractor and shall not co-operate with tenderer in preparing a tender. (3) Contracting entity shall not ask the tenderer to employ any specific sub-contractors or to perform any other business, for example export of specific goods or services, unless otherwise stipulated by special law or international agreement. In such case, contracting entity shall specify in the contract documents that the contracting entity will have to employ a certain number of domestic sub-contractors, or to include a certain value or quantity of goods and services of the Slovenian origin. Article 6 (The principle of transparency in the use of public funds) (1) Funds may only be used within the scope of the contract and the subject of the contract concluded pursuant to the accomplished contract award procedure. (2) Contract award procedures under this Act shall be public, which shall be ensured through the publication of contract notices in official journals. Any person who has or had expressed interest in the award of contract, shall be entitled to learn details on the contract award procedure in accordance with this Act.

6 Page 6 of 71 Article 7 (The principle of equality of tenderers) (1) Contracting entity shall ensure that there is no discrimination among tenderers in any of elements and phases of contract award. (2) Contracting entity shall ensure that they do not create circumstances which would mean territorial, material or personal discrimination among tenderers, or discrimination arising from the classification of the business performed by the tenderers. (3) Determination of the origin of goods or services shall be tolerable in the cases and for the purposes stipulated by a special regulation. (4) Contracting entity shall not eliminate a tender exclusively because it is based in a country which does not have an agreement on equal treatment of domestic and foreign tenderers. (5) Where the Republic of Slovenia does not have an agreement stated in the previous paragraph, the contracting entity may award contracts in water, energy, telecommunication and energy sectors to domestic tenderers in accordance with the provisions of this Act Data protection, documenting and recording of the procedure Article 8 (Confidentiality of data) (1) Contracting entity shall safeguard as confidential all data on tenderers contained in tenders, which are defined as confidential by the regulation on commercial companies or any other regulation. (2) The contracting entity may refuse to deliver such information that would mean infringement of the confidentiality of data received in tenders. (3) Contracting entity shall withhold as a trade secret the names of tenderers and the submitted tenders until the date fixed for the opening of tenders. Article 9 (Determination of confidentiality) (1) In the dissemination of technical specifications to tenderers and candidates and the selection of suppliers, providers and contractors in connection with the award of contracts the contracting entity may require the protection of confidential information which it makes available to them. (2) Anyone who has received information defined as confidential in a specific regulation,

7 Page 7 of 71 irrespective of the level of confidentiality, shall respect the confidential nature of such information. Article 10 (Documentation and the keeping of records) (1) Contracting entity shall keep records of all phases of the contract award, the conclusion of the contract, the execution of the contract, the manner in which additional works are awarded, the take-over of supplies, works or services, the execution of the obligations of supplier, provider or contractor within the guarantee period, post-guarantee maintenance, and so on. (2) Contracting entity shall keep documentation on the contract award procedure. (3) Contracting entity shall keep records on negotiation in the procedures where a contract was awarded through a negotiated procedure. Article 11 (Storing of the documentation) Contracting entity shall store documentation in accordance with the regulations governing office operations and with other regulations setting out the storage of specific documents. Contracting entity shall store documents for at least as long as the contractual deadlines for the execution of an individual contract Language Article 12 (Language used in contract award procedure) (1) Contracting entity shall draw up the contract and supporting documents and conduct the procedure in the Slovenian language. Tenderers shall submit tenders in the Slovenian language. (2) Contracting entity may in contract documents allow the use of a foreign language in addition to Slovenian. In such case, a part or the whole contract documents shall be prepared in that foreign language, as well. Contracting entity may allow in their contract documents that tenderers may submit their tenders, in part or in full, also in another language, especially in the part related to technical characteristics, quality and technical documentation. If contracting entity allows tenderers to submit part of tender in a foreign language, it shall specify which part of the tender may be in that foreign language. (3) If during revision and evaluation of tenders, contracting entity find out that the part of tender which is not submitted in the Slovenian language shall be translated into Slovenian, it may ask the tenderers to do that within a specified time limit. (4) Contracting entity shall state in which foreign language a tenderer may submit a tender.

8 Page 8 of 71 (5) In case of dispute, the contract documents in the Slovenian language, or the tender in the Slovenian language shall be used as reference Currency Article 13 (Selection of currency) (1) Values in the contract and supporting documents and the tender shall be stated in Slovenian tolars. (2) Contracting entity may ask that tenderers state values also in other currencies. In this case, contracting entity shall state that the relevant medium exchange rate of the Bank of Slovenia, applicable on the day of the opening of tenders, is used for conversion into Slovenian tolars. (3) In the case where tenderers are permitted to submit tenders in another currency beside the Slovenian tolar, contracting entity shall state in the contract documents the currencies in which tenders may be submitted Anti-corruption provisions Article 14 (Prohibition to offer bribes) (1) Contracting entity shall reject a tender if the tenderer who submitted it gives or is prepared to give to a current or former employee of the contracting entity a gift in the form of cash or in any non-cash form whatsoever, offer employment or any other thing or favour the value of which could be expressed in money, as an attempt to influence an action or a decision or the course of the contract award procedure. (2) Contracting entity shall inform the tenderer and the Public Procurement Office of the rejection of the tender and the reasons for it in writing, and shall record it in the documentation related to the contract Conditions to institute a procedure Article 15 (Fulfilment of conditions to institute a procedure) (1) Contracting entity may institute a contract award procedure provided it had been planned in

9 Page 9 of 71 the procurement plan included in the budget of the Republic of Slovenia, the budget of a local community or in a financial plan. The funds for a particular contract may not exceed the amount set out in the regulation governing the implementation of the budget and public financing. If the duration of contract is for several years, the liabilities which will fall due in the following years shall be agreed in the amounts determined by the regulation on budget execution for each particular year. 2) If contract is of investment type, contracting entity shall prepare an investment programme according to uniformed methodology for the elaboration of investment type programmes and in line with the development programme plan. The programme shall be approved by contracting entity s superior with a decision in writing. Article 16 (Provision of funds during temporary financing) If the budget of the Republic of Slovenia, the budget of the local community or the financial plan of another contracting entity bound by this Act has not yet been approved, contracting entity may institute the procedure but only up to the amount of funds planned in compliance with the rule on temporary financing Procurement procedures Article 17 (Types of procedure) (1) Types of procedures for the award of contracts shall include: 1. open procedures, 2. restricted procedures, 3. negotiated procedures. (2) As a rule, the contracting entity shall select an open procedure. Article 18 (Award of contracts by open procedure) An open procedure is a procedure in which all interested may submit tenders prepared in accordance with previously defined requirements of the contracting entity as prescribed in the contract documents.

10 Page 10 of 71 Article 19 (Award of contracts by restricted procedure) (1) A restricted procedure is a procedure in which those candidates invited by the contracting entity to take part on the basis of their previously established qualification may only submit tenders. (2) Contracting entity may apply a restricted procedure only where the subject of contract are such supplies, services or works which can be performed only by a small number of tenderers with adequate technical, human and financial capacity. Before the publication of contract notice with respect to the first phase of the restricted procedure, contracting entities may request a prior opinion of the Public Procurement Office. The latter shall issue its opinion within seven days after the receipt of the request. Where the Office fails to issue the opinion within seven days, contracting entity may continue the award procedure. (3) The first phase of the restricted procedure may be applied also in cases where the subject of contract is a permanent procurement of goods, services or works that cannot be planned in advance in terms of quantities and time, and may immediately be purchased or delivered, and are not produced following contracting entity specific requests but are subject to market conditions. In the first phase, the contracting entity shall set the contract documents in such a way that the lowest price is the sole criterion in the second phase. Article 20 (Negotiated Procedure Without Prior Publication, and With Prior Publication) (1) Contracting entity may award the contract by a negotiated procedure without prior publication, if: 1. contracting entity does not receive any tender in the open or restricted procedure, or all received tenders are inappropriate and under the condition that the initially defined elements of contract documents are not basically changed, 2. for objective reasons or for reasons related with the protection of exclusive rights, the contracts can be performed only by specific suppliers, providers or contractors, 3. emergency occurs, or in the case of unpredictable events that contracting entity was unable to consider and the deadlines prescribed for open and restricted procedures cannot be respected. In cases under items 2. and 3, contracting entity shall obtain a prior opinion of the Public Procurement Office. The latter shall issue its opinion within seven days after the receipt of the request. Where the Office fails to issue the opinion within seven days, contracting entity may continue the award procedure. (2) Contracting entity may award the contract by a negotiated procedure with prior publication of contract notice for the open or restricted procedure:

11 Page 11 of if it receives, in an open or restricted procedure, inadequate or inappropriate tenders, while the contents of the contract documents is not basically modified. Contracting entity shall publish a notice stating that a contract shall be awarded by negotiation save when the negotiations involve all tenderers whose tenders were submitted during the previous open or restricted procedure and complied with the request for recognition of qualification. 2. if in exceptional cases where the nature of contract or contract related risk does not allow contracting entity to previously fix the total price. (3) During negotiations, contracting entity shall ensure that the contracted price is not higher than the comparable market price and carefully examine the quality of the article which is the subject of contract. 2. COMMON PROVISIONS 2.1. Institution of a Procedure Article 21 (Decision to Institute a Procedure) (1) Contracting entity shall institute the contract award procedure by means of a written resolution containing at least the following details: 1. the serial number of the contract for the current year, 2. the subject of the contract, 3. the value of contract as contracting entity estimate and expects in tenders, 4. the reference to the decision on approving the investment plan in line with uniform methodology, if necessary 5. the approximate dates by which individual phases of contract award procedure must be carried out, 6. a definition of the items for payment in the national budget, the local budget or the financial plan. (2) The decision may contain other elements as well, if contracting entity estimate that they are required. (3) Contracting entity shall ensure an expert evaluation of tenders. Upon making a decision to initiate a procedure, contracting entity may appoint an expert commission to evaluate tenders. The number and the composition of this commission shall be determined according to the contract subject and the type of the procedure to award contract.

12 Page 12 of 71 Article 22 (Authorising Another Person to Carry out the Procedure) (1) A contracting entity may authorise another legal or natural person in writing to carry out the contract award procedure; such person shall carry out the procedure on behalf and on the account of the contracting entity. (2) In awarding a public contract in the water, energy, telecommunication or transport fields, contracting entity may use the list of qualified tenderers of another contracting entity. Such decision shall be grounded in writing Contents of contract documents Article 23 (Preparation of Contract Documents) (1) Contracting entity shall draw up contract documents on the basis of which tenderers can prepare high-quality tenders. (2) The content of contract documents shall be identical to details published in the contract notice. (3) The compulsory content of the contract documents under open procedure in the second phase of the restricted procedure shall include in particular: 1. an invitation to submit a tender, 2. instructions to tenderers on the elaboration of a tender, 3. a form of tender, 4. a form of establishing qualification, and instructions on the manner of demonstrating the qualification of the tenderers (only in the case of open procedure), 5. forms for a statement of tenderers accepting the terms of the tender, 6. a model contract, 7. the type, technical specifications, quality, quantity and description of the supplies, works and services, the time and the location of delivery of supplies, eventual additional services and the like, 8. technical documents and plans, 9. a pro-forma invoice with instructions how to complete it,

13 Page 13 of statement of the type of financial guarantee by which tenderers insure the fulfilment of their liability in the contract award procedure, like various forms of pledge of securities and other objects, mortgage, bills, guarantees by private companies or other legal entities with an appropriate standing, bank guarantees, insurance policies and other types of guarantee. The contract documents shall also include other documents which, in view of the object of the contract, are necessary for the elaboration of a tender. (4) The contract documents shall, in the first phase of restricted procedure, contain in particular: 1. invitation to tender, 2. instruction to tenderers on the elaboration of tenders, 3. form of tender, 4. form for establishing qualifications and instructions on the way of evidencing them by candidates. 5) Minister of finance lays down in detail the compulsory elements of the contract documents. The act which regulates the execution of budget of the Republic of Slovenia for a particular year, determines the thresholds at which the contracting entity shall request bank guarantees Access to contract documents Article 24 (Time Limits for Requesting Contracts Documents) (1) On the day when the contract notice is published, contracting entity shall allow all interested tenderers an insight into contract documents and deliver it on request. Contracting entity may charge only the costs of copying and delivery of contract documents. The latter shall be delivered on requests in person, by post, telefax or electronic mail, if such delivery method is possible. In an open procedure, contracting entity may not restrict the time limit by which tenderers may request the contract documents. (2) Tenderers shall request the contract documents from the contracting entity as soon as possible after the publication of contract notice. Contracting entity shall send the contract documents within two days following the date on which they are requested by a tenderer. (3) Tenderers may not assert subsequent increase in price for reasons of incomplete or inadequate contract documents with respect to those parts of contract award which were insufficiently defined in the contract documents but could have been foreseen considering the subject of contract and total contract documentation. Article 25

14 Page 14 of 71 (Amendments to the contract documents) (1) If, within the time limit fixed for the receipt of tenders, contracting entity amends or supplements the contract documents, it shall immediately send them free of charge to those tenderers which have already purchased them. (2) After the time limit for receipt of tenders has expired, contracting entity may not amend the contract documents. If contracting entity establish that on the basis of the existing contract documents they can not or will not be able to evaluate the submitted tenders, it shall repeat the publication of contract notice and shall cover the costs incurred by tenderers on request. (3) If tenderers request any additional information connected with the drawing up of tenders, they shall do so in writing not later than five days before the expiration of the time limit for submission of tenders. Contracting entity shall, in the shortest possible time, send a written reply, and shall simultaneously send the same information to all other tenderers who received the contract documents. (4) If tender documents or supplementary documents are too extensive, or if a tender can be prepared only after on-site examination of the place where public procurement will be performed, or if contracting entity amends contract documents six days or less before the time limit for submission of tenders, it shall correspondingly postpone the time time limit for submission of tenders. (5) Contracting entity shall inform in writing all tenderers who received the contract documents on the prolongation of the time limit, and publish notice on the prolonged time limit in the same way as the contract notice was originally published Determining the Contract Value Article 26 (Determining the Basis) (1) Respecting the principle of economy, contracting entity shall form the subject of contract into logical units (hereinafter: lots) so that separate contracts can be awarded. Contracting entity may not select a method to determine the contract value so as to avoid the public tender for reasons of lower price. (2) The contract value shall be determined without the value added tax. (3) The Government determines the tolar equivalent of amounts in euros as set out in this Act on 31 August every other year by a special act issued on the basis of this law. The calculation of these values shall be based on the average daily values in euros and euros expressed in special drawing rights. Article 27

15 Page 15 of 71 (Determining the contract value) (1) The basis for calculating the estimated value of the contract shall be: 1. in the case of a sale, rental or lease contracts, where the term is fixed to 12 months or less, the total contract value for the whole duration of contract, or, where the term exceeds 12 months, the total value of contract including the estimated residual value, 2. in the case of the above stated contracts concluded for an indefinite period, or if there is doubt as to the duration of the contract, the monthly value multiplied by 48. (2) Where a contract is concluded for an indefinite period or where it is necessary to renew the contract after a certain period, the estimated contract value shall be established on the basis of: 1. the actual aggregate value of similar contracts concluded over the previous fiscal year or 12 months, adjusted where possible for anticipated changes in quantity or value over the 12 months following the initial contract, 2. the estimated aggregate value during the 12 months following the first delivery or during the term of the contract, where this is longer than 12 months. (3) If a proposed quantity of supplies of the same type may lead to contracts being separately awarded at the same time, the estimated value of the total sum of these separate contracts shall be taken as the basis. Article 28 (Determining the value of service contracts) (1) In calculating the estimated value of service contracts, contracting entity shall take into account the value of the service and all costs of the service incurred by the tenderer. (2) Regardless of the previous paragraph, contracting entity shall take into account the following amounts: 1. as regards insurance services: the premium payable, 2. as regards banking and other financial services: the fees, commissions and interest as well as other charges on the service, 3. as regards contracts which involve architectural or industrial design, physical planning and similar: a fee or a commission payable. (3) Where contracting entity can not establish the estimated value due to a longer duration of contract, contracting entity shall determine the contract value in line with paragraph one of the previous article of this Act.

16 Page 16 of 71 Article 29 (Determining the value of works contracts) (1) Apart from applying provisions of Article 27 above to establish the contract value, the total value of construction shall serve as a basis to calculate the value of works contracts. (2) The basis for the calculation of the value of works contracts shall include the value of all supplies and services that are necessary to perform the contract. (3) Contracting entity shall not add to the value of works contract the value of goods and services that are not necessary to perform the contract just in order to avoid the application of the law in question. Article 30 (Determining the value for lots) (1) Where a supply, service or works contract is the subject of several lots, and the value of each is the subject of a special contract, the value of all lots shall be taken into account when estimating the contract value. (2) This Act shall apply also to individual lots the total value of which is greater than the value laid down in Articles 83, 89, 101, 113, and 116 of this Act. (3) Publication in the Official Journal of the European Communities shall not be obligatory with respect to lots with a total estimated value less than EURO 1,000,000 for works contracts and EURO 80,000 for service contracts provided that the aggregate value of so excluded lots does not exceed 20% of the overall value of all lots General rules concerning the definition of technical elements in public procurement Article 31 (Technical specifications) (1) Technical specifications are an obligatory part of contract documents. Contracting entity shall refer to them in contract documents relating to each individual contract. (2) Contracting entity shall define technical specifications by referring to laws, technical regulations and standards in force in the Republic of Slovenia or - in the absence of Slovenian technical regulations and standards in the Republic of Slovenia - by referring to European standards or European technical licenses or common technical specifications. (3) The competent ministry shall establish the existence of technical regulations stated in the

17 Page 17 of 71 previous paragraph. Article 32 (Application of technical specifications) (1) Contracting entity may not apply or refer to technical specifications stating the supplies, services or works of a specific make, source or manufacture procedure if such statement might favour certain tenderers, or unjustifiably eliminate others. (2) Contracting entity may not include in the contract documents any provisions, which could have the effect of favouring or eliminating certain tenderers as, stated in the above paragraph unless the subject of the contract justifies such specifications. Contracting entity shall not indicate specific trademarks, patents, types or a specific origin or manufacture. (3) Where the contracting entity is unable to describe the subject of the contract in the contract documents so as to make the specifications sufficiently intelligible to tenderers, the indication of elements such as trademarks, patents, types or manufacturers must be accompanied by the words or equivalent. Article 33 (Issuing of attestations) When contracting entity awarding service contracts, demand attestations to verify conformity with the requirements of quality management and quality assurance issued by independent bodies to confirm that these services comply with specific standards, they shall make reference to a quality assurance system under the Slovenian standards series SIST EN ISO 9000, which fulfil the requirements from the Slovenian standards series SIST EN Article 34 (The contents of technical specifications or project documentation) (1) Technical specifications and project documentation as defined in this Act shall mean the technical requirements which are an obligatory part of the contract and supporting documents in which the characteristics of lots of works, material, product, supply or service are laid down. They shall make it possible that works, materials, products, goods or services are described in a way, which is objective and suitable for contracting entity s purposes. (2) Technical specifications may include requirements of quality, performance, safety or dimensions, applicable to the material, product, supply or service with respect to quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling. (3) In the case of works contracts, technical specifications may also include regulations for the design and costing, test, inspection and acceptance conditions as well as techniques or methods of construction.

18 Page 18 of 71 Article 35 (Permission to derogate) (1) Contracting entity may derogate from the provisions laid down in Article 31 in the following cases: 1. if standards, technical approvals or general technical specifications or project documents do not include any provisions for establishing conformity, or, if there are no technical means to satisfactorily establish the conformity of a good or service with these standards, technical approvals or general technical specifications or project documents, 2. if such use would prejudice the application of mutual recognition type of approval for telecommunications and terminal equipment or as regards standardisation in the field of information technology and telecommunication or other Community instruments in specific areas of goods or services, 3. if the use of standards, technical approvals or general technical specifications would oblige the contracting entity to supplies incompatible with the equipment already in use or would entail disproportionate cost or disproportionate technical difficulty, 4. if the contract concerned is of a genuinely innovative nature for which the use of the existing standards, technical approvals or general technical specifications would not be appropriate. (2) Contracting entity referring to the previous paragraph shall publish its reasons also in the public tender and in the contract documents. (3) Contracting entity shall explain its reasons referred to in the previous paragraph at the request of a competent national body, the European Commission or a Member State. Article 36 (Other ways of defining technical specifications) In the absence of standards, technical approvals or general technical specifications, technical specifications may be defined in the following manner: 1. in accordance with the technical specifications applicable in the Republic of Slovenia. These technical specifications shall comply with the basic requirements applicable within the European Community for technical harmonisation in accordance with the procedures specifically envisaged for that purpose, and this shall especially be taken into account in the procurement of works materials, information technology, in the field of telecommunications, and other specific fields of services and goods, 2. in accordance with the technical specifications applicable in the Republic of Slovenia with respect to design, calculation methods, execution of works and use of materials, 3. in accordance with other documents, where contracting entity shall apply the following order of preference:

19 Page 19 of 71 a) Slovenian SIST standards which are transposed international standards, b) any other national standards, c) technical approvals applicable in the Republic of Slovenia. Article 37 (Standards) (1) A Slovenian standard is a standard adopted by a competent body in the Republic of Slovenia and available to the public. (2) A European standard is a standard adopted by a competent body of the European Communities and is available to the public. (3) A foreign national standard is a standard adopted by a competent foreign national body and is available to the public. (4) Other standards are standards which may be adopted on a different basis, for example branch standards or company standards. (5) An international standard is a standard adopted by an international organisation for standards or an international standardisation organisation and is available to the public. Article 38 (Technical attestation) (1) Technical attestation is a positive technical assessment of suitability of a product for the intended use. (2) A European technical attestation is a positive technical assessment of suitability of a product for the intended use based on the fulfilment of basic requirements for the intended works. A body competent to issue technical attestations shall issue a European attestation. (3) A European attestation shall be used for the procurement of works. Article 39 (Common technical specifications) A joint technical specification is a technical specification drawn up in accordance with a procedure recognised by the Republic of Slovenia with a view of its uniform application in all Member States of the European Union. Common technical specifications shall be published in

20 Page 20 of 71 the Official Journal of the European Communities. Article 40 (Statement of essential requirements) Essential requirements which are not included in the technical norms and standards in force and are relating to safety and other circumstances in the general interest shall be adhered to, and explicitly stated in the tender documents Participation conditions Article 41 (Obligatory participation conditions) (1) Contracting entity shall announce in the contract notice and in the contract documents the conditions which must be fulfilled by a tenderer wishing to take part in the procedure. (2) Contracting entity shall exclude tenderers from the procedure in the following cases: 1. if they are not registered by the competent entity of the state where they are established, 2. if compulsory settlement, bankruptcy or liquidation procedures have been initiated against the tenderer or if the tenderer has suspended his business activities pursuant to a court order or other compulsory order, 3. if tenderer has, during a period of five years prior to the publication of the contract notice, been issued with a legally binding judgement for an infringement connected with his business activities or issued with a court or administrative order prohibiting him from carrying out the activity which is the subject of the contract, 4. if the tenderer has not fulfilled obligations relating to the payment of taxes, social security contributions and other contributions or business obligations in accordance with the regulations of the country in which he is established, 5. if the tenderer does not have a valid permit from the body competent for the activity which is the subject of the contract, 6. if the tenderer does not have the necessary financial or economic standing, 7. if the tenderer does not have sufficient technical capacities, 8. if the tenderer is guilty of misrepresentation in delivering or failing to deliver information that may be required under this paragraph. (3) In order to fulfil liabilities of tenderers towards subcontractors or suppliers, contracting entity

21 Page 21 of 71 may prescribe additional conditions. Tenderers in their tenders shall explicitly confirm the adoption of these conditions. (4) Tenderers shall state in their tenders whether their tenders refer to the entire contract or only to particular lots. Even if tenderers submit their tenders for all lots, their tenders shall be submitted so that it can be assessed by individual lots. After assessment of tenders by individual lots, and the assessment of tenders for all lots, contracting entity may conclude a contract with one or more tenderers offering the most favourable combination of tenders. Article 42 (Proof of the fulfilment of participation conditions) (1) Contracting entity shall require written proof from the tenderer of the fulfilment of the participation conditions laid down in paragraph (2) of the previous article. (2) Proofs, which tenderers are to submit in their tenders demonstrating their capability to perform the contract, shall include the following documents issued at their request by competent bodies: 1. under Article 41(2) items 1., 2. and 3 above - extract from the judicial or other record, 2. under Article 41(2), item 4 above - a certificate issued by the competent tax authority where the tenderer is established, or a competent authority in the Republic of Slovenia, 3. under Article 41(2) item 5 above - a certificate issued by the competent authority keeping records of the issue of licence to do the business in question, 4. under Article 41(2), item 6 above - a revised balance sheet or extracts from balance sheet, or statements of a tenders overall revenue from sale and revenue from goods, works or services to which the contract relates for the last three financial years, opinions and bank statements and other specialised institutions, or proofs which are stated in the call for tender and in the contract and supporting documents. Contracting entity shall state in the contract notice or in contract documents which element under this item it had chosen and which other elements proving financial and economic standing the tenderers need to produce, 5. under Article 41(2), item 7 above - one or more proofs in accordance with the subject of the contract, the quantity and the purpose, such as: a) a list of the principal supplies, works or services performed in the last three years, with the values, dates and a list of public contracting entities or private entities; where the purchasers or contracting entities are the contracting entities according to this Act, the evidence shall be issued in the form of certificates issued or countersigned by the competent authority, while if purchasers or contracting entities are private undertakings or private individuals, the certificate shall be certified by the purchaser, b) a description of the tenderer s technical facilities and appliances, measures for ensuring quality, and the R&D related capacities,

22 Page 22 of 71 c) a statement of the key technical personnel and other experts working for the tenderer who will be responsible for the execution of the contract, and the persons responsible for the quality control, è) samples, a description or photographs of goods, a description of works to be executed or services to be provided by the tenderer. In the case of doubt, contracting entity may request proof of their authenticity, d) certificates issued by authorised bodies or other quality control organisations attesting conformity to specifications or standards of goods or services with certain required specifications or standards in the contract and supporting documents, e) where supplies are complex, or the services or works are very demanding, or if in exceptional cases the subject of the contract is intended for special purposes, an examination shall be carried out. The examination shall be carried out by contracting entity s representatives, or on its behalf, the competent official body of the country in which the tenderer is established. The examination shall focus on the production capabilities of tenderers and, where necessary, also their R&D capabilities, and quality establishing methods. (3) Tenderers shall ensure that their subcontractors, if they are stated in the tender, also fulfil the participation conditions provided for in the previous article. Their fulfilment of participation conditions shall be recorded in the same way as is required with respect to tenderers. (4) In the Republic of Slovenia, certificates under paragraph (2), items 1. and 3. above, shall be issued by regular courts, Tax Administration or Chamber, while certificates under paragraph (2), item 2 shall be issued by the Tax Administration of the region where tenderers are based. (5) If tenderers are based abroad, contracting entity shall verify if documents proving the requested facts are issued by the competent authorities. The list of competent authorities of foreign states issuing the documents that contracting entity may request under this article, and the method of verifying such documents, shall be prepared by the minister of finance. Article 43 (Professional References) (1) If contracting entity requests the submission of professional references, it shall specify in the contract notice or in the public tender and in the contract documents which professional recommendations (references) the tenderers must produce. (2) The extent of the information requested under the preceding paragraph must be confined to the subject of the contract. Contracting entity shall consistently respect the legitimate interests of tenderers and protect their technical or business secrets. Contracting entity may use the information acquired only for the purposes of a specific public tenders. Article 44 (Supplementary Statement)

23 Page 23 of 71 Where the official bodies in the country in which tenderers are established do not issue the certificates required in Article 42(2), or where such certificates do not cover all the cases mentioned in items 1, 2 and 3 of Article 42(2), they may be replaced by their own written declaration legalised before the competent body of the state where such tenderer is established, or by a written declaration given under the criminal and material liability Recognition of qualification Article 45 (Statement of Qualification) (1) Before the award of a contract, contracting entity shall check that tenderers fulfil the conditions concerning economic and financial standing as defined in Article 41(2), items 5. and 6. (2) Contracting entity shall award contracts on the basis of conditions for establishing the capability referring to financial, personnel-related and technical capabilities to perform the contract. Contracting entity may define additional criteria provided they do not constitute any discrimination of tenderers. Article 46 (Statement of Qualification for Subcontractors) (1) In establishing the capability to execute a contract, contracting entity may ask tenderers to state in their tenders whether the execution of the contract will be, in part or in full, entrusted to a subcontractor. If it will, tenderers shall name such subcontractor and if a contract is signed, the same subcontractor shall be named in the contract between the contracting entity and the tenderer. (2) Tenderers shall be liable in full for the execution of a contract awarded to them irrespective of the number of subcontractors. Article 47 (Submission of a Joint Tender) (1) Tenders may be submitted by a grouping of tenderers. Contracting entity may not require such a grouping to assume a specific legal form in order to submit a tender. (2) Contracting entity may, however, require such a grouping of tenderers to submit a legal act on the joint execution of a contract, if they are awarded the contract and provided it is necessary for the successful execution of the contract. The legal act on the joint execution of a contract shall state in detail the responsibility of individual tenderers for the execution of the contract. In any case, tenderers shall have unlimited joint liability to contracting entity.

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