REPUBLIC OF SERBIA

PROTECTION OF RIGHTS

IN PUBLIC PROCUREMENT PROCEDURES

Branislav Cvetkovic

Member of the Republic Commission

for Protection of Rights in Public Procurement Procedures

www.kjn.gov.rs

Republic Commission

for Protection of Rights in Public Procurement Procedures

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)

Competences of the Republic Commission

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

Protection of Rights Procedure

- Capacity to File Request for Protection of Rights -

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

Protection of Rights Procedure - First Instance: Contracting Authority -

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)

Protection of Rights Procedure - Second Instance: Republic Commission -

Republic Commission within 20 days makes decision:

• 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

Protection of Rights Procedure - Second Instance: Republic Commission -

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

Special Authorities - Monitoring of the Implementation of Decisions -

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

Special Authorities - Imposing of Fines -

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 170-700)

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

Special Authorities - Annulment of contracts -

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

Special Authorities - Minor Offence Proceedings -

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.

Special Authorities - Prohibition of Abusing Request for the

Protection of Rights -

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

Resolved cases

(Request for the protection of rights) 2011 2012 2013

Refused requests 246 262 351

Rejected requests 103 83 81

Fully annulled procedure 242 361 369

Partially annulled procedure 348 364 540

Suspended procedure 31 23 51

Dismissed statement 90 89 96

Returned to the contracting authority for

handling 1 0 0

Resolved otherwise 4 49 34

TOTAL 1065 1231 1522

Statistics on Operations of the Republic Commission*

*Source: Commission's annual report submitted to the National Assembly

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

THANK YOU FOR YOUR ATTENTION!