This public procurement is one of the cases of abuse of the negotiated procedure without prior publication, which we wrote about in the case study of the procurement of medical equipment for the Emergency Room of the Clinical Center of Serbia.

In this particular case, besides using the order of the Ministry of Health to complete the procurement in a short time, the contracting authority tried to justify the urgent procurement of a multislice scanner with the fact the due to the current epidemiological situation it was declared a triage center for COVID patients.

With this in mind, it is clear that even in this case there were no conditions for conducting the negotiated procedure on the basis of urgency, since none of the stated reasons represented a circumstance that could not be objectively foreseen, avoided or eliminated in terms of law, nor was there a need for urgent procurement of the medical equipment in question.

However, what distinguishes this procurement from similar procurements of medical equipment that were conducted at the end of 2020, is the fact that the contracting authority limited the competition in the procedure by refusing to invite a bidder who expressed its interest in participating in the procedure. Thus, the contracting authority additionally limited the competition in the procedure in which it is already limited by the nature of the matter.

Namely, in the specific case, the contracting authority sent an invitation for negotiations to the addresses of four economic entities. After learning about the procedure, another business entity, as an authorized distributor of the devices in question and a regular participant in public procurement procedures for this medical equipment, expressed its interest in participating in the procedure via e-mail. Although he confirmed the receipt of the e-mail, the contracting authority failed to invite this bidder to negotiations without any explanation.

The Law on Public Procurement stipulates that after publishing the notice on initiating the negotiation procedure without prior publication, the contracting authority is obliged to send a written invitation to negotiate to one or, if possible, to a larger number of economic entities.

Failing to invite an economic entity that could indisputably offer the subject of procurement, the contracting authority failed to provide greater competition in this particular case, which it was obliged to do by law. Especially since inviting another bidder in this situation would in no way affect the (alleged) urgency of the procurement, and would most likely affect the lower price of the accepted bid and the better quality of the subject of procurement.

Thus, out of four economic entities that the contracting authority invited to the negotiations, three responded to the invitation and submitted bids, and only the bid of the selected bidder was acceptable. The value of the selected bid was almost identical to the estimated value of the public procurement, i.e. to the amount of funds approved by the Ministry of Health. Of the remaining two bids submitted, one was far above the estimated value, while the other bid did not contain a guarantee for the seriousness of the bid, which can only indicate that these two bids were submitted only to create the illusion of competition.

Having all this in mind, the positive opinion of the Public Procurement Office regarding the merits of the subject negotiation procedure is surprising at least, to put it mildly. Even more confusing is the action of the Republic Commission which unconditionally accepted the reasoning of the contracting authority (both in terms of the admissibility of the negotiated procedure and in terms of the existence of competition), without even assessing the allegations of the request for protection of rights submitted by the interested person.