SELECTION OF A PRIVATE PARTNER FOR RECONSTRUCTION AND MAINTENANCE OF PUBLIC LIGHTING IN THE MUNICIPALITY OF NOVA CRNJA (2017/2018)

The analyzed public procurement procedures represent one of the characteristic examples in which the contracting authority restricted competition through vague and unclear definition of additional conditions for participation in the procedure, i.e. criteria for assessing their fulfillment.

Namely, in the tender documentation, as an additional condition for participation in the public procurement procedure, the contracting authority required the bidders to have a satisfactory business capacity – reputation. As stated, the bidder will be considered as having such a reputation if he and his related parties have in a quality manner executed (and still do execute) all contracts and business relations with the Republic of Serbia and all the (in)direct users of the budget of the Republic of Serbia.

As a proof of fulfillment of this condition, the submission of the Statement of Reputation was requested, signed and certified by the bidder, which, in addition to performing business relations “in a quality manner”, also contained the words “without disputes”.

The contracting authority did not specify what will be considered as contracts and business relations, what will be considered as their execution in a quality manner, and what will be considered as disputes, as it did not state which time period is relevant for all of the stated requirements.

Due to the unclear criteria for assessing the fulfillment of the additional condition, and upon the request for protection of the rights of the dissatisfied bidder whose bid was rejected with the explanation that he did not meet this additional condition (with incoherent explanation that he did not fulfill the obligations from a privatization process that had nothing to do with the procurement in question), the Commission for protection of rights in public procurement procedures annulled the procedure in question in its entirety.

However, the procuring entity was persistent in its efforts to exclude the mentioned bidder, so after the annulment of the public procurement procedure, it conducted a new procedure with the same subject of public procurement, in which it slightly changed the mentioned condition by deleting the words “without disputes” (from the Statement of reputation) and by determining the time period for which the reputation will be assessed.

The result of such a repeated procedure was only one submitted bid (3 bids were submitted in the first procedure), and the bidder who successfully challenged the first procedure did not participate in the repeated procedure either because he realized that the contracting authority would not give up its intention to unlawfully discriminate him, or there has simply been an agreement on some kind of market sharing between the actors involved in such public procurement procedures in Serbia.

Such conscious restrictions of competition by contracting authorities, on the one hand, and illegal agreements of market participants on (non) participation in public procurement procedures, on the other hand, are the key reasons why only one bid is submitted in a large percentage of public procurements in Serbia.