This procedure is one in a series of negotiated procedures without prior publication that various health institutions conducted at the end of 2020 for the procurement of medical equipment (scanners and X-ray machines), although there were no legal conditions for that.

Namely, in each of these procedures, in addition to some of the reasons related to the coronavirus epidemic, the main justification for the extremely urgent procurement of medical equipment was the short deadline set by the Ministry of Health to contracting authorities for public procurement of these devices and for the withdrawal of funds approved for that purpose. This was also the case here: in addition to the order of the Ministry of Health, the contracting authority justified the extreme urgency of the procurement by the fact that the said equipment was overloaded due to the increased workload in the COVID-19 virus epidemic, stating that the devices were in poor conditions and often out of order due to malfunctions.

The negotiated procedure on the basis of urgency is the least transparent public procurement procedure when competition is, as a rule, limited, which is why the legal conditions for its implementation should be interpreted restrictively. This procedure should be used exceptionally and only in cases when certain goods need to be procured without delay (i.e. when human lives and health are endangered), and only in circumstances that could not be foreseen and which are not a consequence of the contracting authority’s behavior (i.e. in the case of natural disasters). The stated conditions did not exist in the specific case.

First of all, at the time of initiating the subject procedure, the epidemic of coronavirus did not represent a new and sudden circumstance for the contracting authority, since it was declared in March 2020. Therefore, the fact that the epidemic caused the increased volume of work (i.e. the number of users of these devices) could not in any way represent a circumstance that the client could not have foreseen. Also, the poor condition of the medical equipment referred to by the contracting authority did not occur suddenly, as a consequence of the epidemic and the increased volume of work. The poor condition of medical equipment is a consequence of its age and possibly poor planning of the replacement of that equipment. Therefore, the obsolescence of these devices is a fact that was known to the contracting authority even before the initiation of the procedure.

Likewise, the order of a state body to carry out the procurement within a certain period of time does not represent a circumstance that could not have been objectively foreseen, avoided or eliminated. Moreover, one could say that the existence of the order of the Ministry to conduct procurement within a certain period as a circumstance that justifies the urgency of procurement is completely contrary to the nature and purpose of the negotiated procedure without prior publication on the basis of urgency.

In this regard, allowing a negotiated procedure in these cases has set a dangerous precedent, which could open the door to numerous abuses in the future. Therefore, it is very surprising that the Public Procurement Office in all these cases gave a positive opinion regarding the merits of the negotiated procedure. Moreover, the Republic Commission rejected all requests for protection of rights which challenged the validity of the implementation of this type of procedure.

Having in mind all of the above, the cases in question are a confirmation of the pattern of behavior of the authorities and competent state bodies in Serbia that interpret and apply the laws in the manner and at the time that suits them best, without hesitating even from suspending legal provisions in situations when they represent an obstacle to the realization of their goals (or, better said, their interests).