The public procurement in question is one of several procurements of works on the reconstruction of various facilities in Serbia (schools, health care and social welfare institutions), which were conducted during 2019 and 2020 and financed by the Office for Public Investment Management.[1] In each of these procedures of large estimated values, the tender documentation contained almost identical discriminatory additional conditions and technical requirements, due to which there was almost no competition and the contracts were always awarded to the same bidder, i.e. the group of bidders of which he was a member.

Thus, in the public procurement procedure in question, the contracting authority insisted on the application of HIO technology during the execution of waterproofing works, which practically determined the winner in advance. Namely, as the required technology is patent protected, it is clear that the contracting authority favored the patent holder (“HPS HIO-PROTECTION SYSTEM” from Novi Sad) with this request, i.e. the group of bidders of which he is a member.

Unlike similar procurements of works on reconstruction of different facilities carried out in the mentioned period, in this particular case the contracting authority went a step further, so within the business capacity it even asked the bidder for appropriate experience in performing waterproofing works using this technology.

Also, unlike other similar cases in which the contracting authorities openly requested the application of HIO-technology, in the present procedure the contracting authority did not explicitly mention HIO-technology or the stated brand at any place in the tender documentation. However, from the very precise description of the waterproofing works, it indisputably follows that the contracting authority had exactly that technology in mind. Because, when the above descriptions of works are compared with precise descriptions of technology and materials from the appropriate patent files and technology described on the website of the company “HPS HIO-PROTECTION SYSTEM”, it is completely clear that it is exactly HIO-technology. After all, in the present procedure, only one bid was submitted by a group of bidders whose member was “HPS HIO-PROTECTION SYSTEM” from Novi Sad, which only confirms these claims.

Therefore, in all these cases, one item extremely small in volume and value in relation to the volume and value of the entire work (the value of waterproofing works is measured in per mille in relation to the value of all works) essentially determined the only possible winner of the public procurement procedure of huge estimated value (547,543,327.00 dinars without VAT).

In addition to this discriminatory request, the contracting authority in the procedure in question (as well as the contracting authorities in other similar cases) unjustifiably and illegally conditioned the bidder’s participation with a previous visit to the location where the works would be performed. Also, within the business capacity the contracting authority required the experience of the bidder exclusively on public facilities. In this way, the bidders were additionally placed in an unequal position, especially having in mind the different distance of their companies from the place to be visited, but also the fact that the quality of the performed works does not depend on the purpose of the facility, i.e. on whether the facility is public or private.

The peculiarity of this public procurement procedure is reflected in the fact that in addition to all these discriminatory conditions, the contracting authority set a shorter deadline for submission of bids than the minimum legal deadline. In accordance with the Law on Public Procurement valid at the time of initiating this procedure, the minimum deadline for submission of bids was 20 days from the date of publication of the invitation to submit bids. However, the contracting authority first set a deadline of 17 days in the invitation to submit bids, and then extended this deadline by 2 days, after which it amounted to 19 days.

Having in mind all the above, it seems that in this case the contracting authority was so impatient to award the public procurement contract to the pre-selected bidder as soon as possible, that it could not meet even the minimum legal deadlines for submitting bids. Given the conditions in the tender documentation, the award of the contract to this bidder was inevitable, so it should come as no surprise that only that bidder submitted a bid in an amount that was only slightly lower than the estimated value of the public procurement. At the same time, different groups of bidders of which this bidder was always a member, only in these few procedures were awarded contracts in the amount of several billion dinars, and only on the basis of a specific request for waterproofing works (whose value, we repeat, is negligibly small compared with the value of the entire works). However, none of the contracting authorities has explained the exact advantage of this way of performing these works, i.e. why none of the many technologies used in Europe and the rest of the world couldn’t be applied in these cases.

[1] JNOP-17/2019 – Construction works on the renovation and improvement of public facilities in public ownership in the field of social protection – Institution of social protection Home “Veternik”; JN-404/267 – Construction works on the reconstruction and extension of the existing building of the elementary school “Bratstvo” and pool construction – City of Novi Pazar; JN-19/79 – Works on reconstruction, adaptation and energy rehabilitation of the Fifth Belgrade Gymnasium – city municipality of Palilula; JN-1.3.1/2019 – Construction works on the construction of a school gym and adaptation and rehabilitation of existing school buildings within the school complex of the elementary school “Mića Stanojlović” Koceljeva – a separate department Kamenica – municipal administration Koceljeva.