CONSTRUCTION OF THE SECTION OF THE POJATE-PRELJINA HIGHWAY (“MORAVSKI KORIDOR”, 2019)
The construction of the Moravian Corridor is one of the most illustrative examples of the (non) functioning of the public procurement system in Serbia. Namely, in order to realize the project of enormous value, the state passed a special law (lex specialis) which completely suspended the application of the Law on Public Procurement and the basic principles of public procurement. With this special law and decree passed on its basis, the Government of the Republic of Serbia was not only authorized to regulate the procedure for selecting a strategic partner with whom contract will be concluded, but also to determining general and special criteria for participation that limited competition to such an extent that only one application was filed.
Therefore, in order to build a highway section, a special law was adopted, which without any grounds repealed the provisions of the general, systemic law which regulates public procurement. It is important to note that the basis for such a thing does not exist in any regulation, not even in the Constitution of the Republic of Serbia, to which the proposer referred in the explanation of the Bill. Namely, the provision of the Constitution of the Republic of Serbia is stated as the constitutional basis for the adoption of this law, which stipulates that the Republic of Serbia, among other things, regulates the organization and use of space. The question arises as to the connection between the spatial planning and the public procurement procedure, as well as why the public procurement procedure regulated by the Law on Public Procurement (hereinafter: LPP) would hinder the implementation of such a project. The LPP clearly and precisely prescribes exceptions to its application, so the Government could have applied some of these exceptions had there been grounds for it – for example, if the Republic of Serbia have concluded an international agreement on the implementation of this project. However, it is obvious that for certain reasons it was decided not to apply neither the procedures nor permitted exceptions from the LPP, which are standard in the international framework (and are regulated in the same way by the EU directives in the field of public procurement, but also by other international rules).
It is even more interesting that the price of the project and works was not considered at all when choosing a strategic partner, since it is not mentioned in the Law, Decree, or published documents (Public Invitation, Decision on choosing a strategic partner) as a selection criterion. Thus, the application of an important anti-corruption law was completely avoided, the consistent application of which is especially insisted on, particularly within the negotiations on Serbia’s accession to the European Union, and the Government is enabled to directly influence who will be awarded a contract of enormous material value by prescribing a special procedure and conditions for the selection of a strategic partner.
Given the above, we can conclude that this case has serious consequences for the entire public procurement system in Serbia. The state has shown that any regulation can be repealed by a special law, while completely ignoring all the principles on which a certain area is based, both in Serbian and in international regulations (especially in the acquis communautaire).
An indicator of this is the Draft Law on Special Procedures for the Implementation of Projects for the Construction and Reconstruction of Line Infrastructure Facilities of Special Importance to the Republic of Serbia, which was in the parliamentary procedure while this case study was being written. This Law was adopted in February 2020. and it stipulates that the open procedure prescribed by the LPP will be applied to the procurement for the implementation of the most significant future infrastructure projects, unless otherwise determined by an international agreement. However, it is also stated that in such a public procurement procedure, certain provisions of the LPP will not be applied such as those related to the procurement plan, prior notification, manner of proving mandatory and additional conditions for participation in the public procurement procedure, deadlines for submission of bids and deadlines for decision-making by the Republic Commission for protection of rights in public procurement procedures.
What is even more dangerous is that for some projects the Government has the authority not to apply the Law on Public Procurement at all for the whole project or its individual phases and activities, in which case a special procedure for selection of strategic partner will be applied, which is regulated by this Law in almost the same way as in the law which refers only to the “Moravian Corridor”. It is clear that on the basis of this new Law, numerous projects will be declared urgent and their implementation will often be assessed as endangered, so the Government will have the authority to decide not to apply public procurement regulations to a specific project at all, whereby the criteria for the selection of a strategic partner will be regulated by bylaws for each project separately (as provided by this Law), i.e. purposefully.
This Law (especially the reasons and basis for its adoption) was also written about in the study on the construction of a wastewater collection and treatment plant in Belgrade.