Within the project Towards Sound Public Procurement System in Serbia, CPES and its partner Association of Professionals in Public Procurement of the Republic of Serbia (hereinafter: the Association), submitted various initiatives to the competent authorities in order to improve the new Public Procurement Law, Public Procurement Development Strategy for the period 2019–2023, as well as the procedure of supervising of the execution of public procurement contracts which, in accordance with the new Law, is to be carried out by the Ministry of Finance.
III Monitoring of the execution of public procurement contracts
Execution of the public procurement contract is one of the most important phases in the public procurement procedure, which, if left without any control, provides numerous opportunities for corruption and illegal agreements between the contracting authority and the selected bidder.
In accordance with the previous Public Procurement Law, the monitoring of the public procurement contracts execution was achieved through the contracting authorities’ obligation to submit to the Public Procurement Office quarterly reports on conducted procedures and concluded contracts in that period. Based on the monitoring of certain procedures, i.e. the execution of certain contracts, the Office was able to notify the competent authorities (Budget Inspection, State Audit Institution) about the identified irregularities. Therefore, the control over the contract execution did exist and the control procedure was regulated by the Public Procurement Law and its bylaws.
On the other hand, although the new Public Procurement Law provides greater opportunities for contracting authorities in terms of amendments to public procurement contracts (without the need to re-conduct the public procurement procedure), it only stipulates that the Ministry of Finance supervises the execution of concluded contracts, but it does not precise the way in which this supervision will be implemented. Furthermore, until the implementation date of the new Law, the Ministry has not disclosed how it will control the execution of the contract.
Also, since the implementation date of the new Public Procurement Law a new Public Procurement Web Portal has also been put in use, enabling the contracting authorities to publish procurement plans, notices and documentation, decisions in public procurement procedures, as well as complete communication with economic entities and the Public Procurement Office. Therefore, the question now arises as to why they are not enabled to publish data related to the contracts execution.
In this regard, after the adoption of the new Law and before its implementation, the CPES sent two requests for access to information of public importance: first one to the Ministry of Finance, with questions regarding the way in which this Ministry will supervise the execution of contracts, and second one to the Public Procurement Office, with the question of whether data on contract execution will be published on the new Public Procurement Portal and whether it is possible to include the collection and publication of the most important data on contract execution in the new version of the Public Procurement Portal.
Both the Ministry of Finance and the Public Procurement Office avoided answering the questions in their responses: the Ministry only specified that it would “in a timely manner, before the implementation date of the Law, adopt all bylaws necessary for its implementation”, while the Office simply stated that it “does not have document containing the requested information”.
Needless to say: the bylaws mentioned in the Ministry’s response have not been adopted, not even several months after the beginning of the implementation of the Law; it is still unknown how the Ministry of Finance will monitor the execution of concluded public procurement contracts, and the new Public Procurement Web Portal (in use since July 1, 2020) does not provide for the possibility of publishing data on the execution of concluded public procurement contracts.
II Public Procurement Development Strategy
The new Public Procurement Law was adopted in December 2019, after the adoption of a new strategy, i.e. the Program for the Public Procurement Development in the Republic of Serbia for the period 2019-2023, and the new Action Plan for 2019 and 2020.
During the preparation of the Public Procurement Development Strategy for the period 2019-2023 and the 2019-2020 Action Plan, the Public Procurement Office organized a public debate. For that occasion the Association prepared and sent its general comments and suggestions on the proposal of the Strategy and Action Plan, as well as its proposals for amendments to the Strategy related to the goals of improving the public procurement system, i.e. measures for the achievement of general and specific goals. However, the Public Procurement Office did not adopt any of the Association’s remarks and suggestions; moreover, during the public debate, out of a total of 17 submitted proposals of all interested persons, only two were adopted.
I New Public Procurement Law
The adoption of the new Public Procurement Law was first foreseen by the Public Procurement Development Strategy for the Republic of Serbia for the period 2014-2018, i.e. by the 2017 Action Plan and the following 2018 Action Plan; nevertheless, the Law was adopted only in December 2019, more precisely on December 24, 2019.
The new Public Procurement Law entered into force on January 1, 2020, while its implementation started on July 1, 2020. During the public debate on the text of the Draft New Law, organized by the Ministry of Finance in cooperation with the Public Procurement Office and the Serbian Chamber of Commerce, the Association submitted a total of 20 remarks, proposals and suggestions, out of which 12 remarks were adopted to become integral part of the Draft text.
Among other things, the objections referred to the provisions concerning too high thresholds for the application of the Law on procurement of works, too short deadlines for submission of bids in certain cases, public procurement commission, content of tender documentation, criteria for selection of economic entity, public procurement clerks, as well as the procedure for the protection of rights. Some objections pointed to the need for legal and technical specification of the text of the Draft, while others proposed different legal solutions from those offered in the Draft, in order to improve the public procurement system in Serbia.