This case study analyses public procurements of 15 health institutions with the same subject: digital X-ray machine. The same technical characteristics were requested in each procurement, which more than obviously favored the bidder “Beolaser” from Belgrade. The outcome in all procurement procedures was the same – only the bid of this bidder was acceptable, and the price offered was in most cases identical to the estimated value, or slightly lower.

The key technical characteristics that the contracting authorities in all these procedures used to favor the mentioned bidder were, in fact, related to the specifications of an additional device that is not an integral part of the digital X-ray machine itself: a dry thermal medical printer, a device used for printing X-ray films (images). In all 15 procedures, different contracting authorities requested exactly that printer with an X-ray machine, with identical characteristics (resolution of at least 500 dpi, contrast of at least 14 bit / pixel, etc.). And not only were the same characteristics of these printers required in all procedures, but these characteristics were listed in the same way one after the other in the tender documentation of different procedures.[1]

The manner in which the mentioned bidder was favored can be concluded from the questions that the interested bidders made to the contracting authorities, pointing out the observed irregularities. In addition, in some proceedings, requests for protection of rights were made, but the Republic Commission rejected those requests, accepting the arguments of the contracting authorities.

Through their questions and submitted requests for protection of rights, potential bidders pointed out that a detailed check of the Register of Medical Devices at ALIMS showed that only two manufacturers of dry medical thermal printers were registered and licensed for sale on the Serbian market. They also stated that two of the required technical characteristics (resolution of at least 500 dpi and contrast of at least 14 bit / pixel) can be met by only one printer model made by one manufacturer – “Drystar 5503”, manufactured by “Agfa” from Belgium. The only company that has the sale license for this model in Serbia is “Beolaser”. In addition to this printer, the same Belgian company also produces digital X-ray machines that meet the technical characteristics required in these procurement procedures, and X-rays of that manufacturer in the territory of the Republic of Serbia are also distributed and sold by the bidder “Beolaser”.

It is interesting that most of the answers of the mentioned 15 contracting authorities to the questions of potential bidders and the indicated irregularities were almost identical, which indicates that they were prepared by the same source, which we assume were not the contracting authorities themselves, i.e. members of public procurement commissions. It is also interesting that the Republic Commission in several of its decisions supported such views of the contracting authority, although the Commission was clearly informed who was favored and in what way, and that in each of these procedures the outcome was the same – the contract was awarded to “Beolaser”, the only bidder able to fulfill the required technical characteristics of a dry thermal printer.

Particularly scandalous was the position of the Republic Commission in several its decisions regarding the allegations that only one bidder has a permit to offer a thermal printer with the required characteristics in Serbia. Namely, in its decision no. 4-00-970 /2020 of November 18, 2020 (which was repeated in decision no. 4-00-1087 / 2020 of December 17,2020) the Republic Commission stated the following: “The possibility of eventual market restrictions on certain goods in the manner indicated by the applicant in its claim, represents a real market environment in which the contracting authority has to conduct its public procurement procedures. Determining the responsibility for possible illegal restriction of competition on the market cannot be the subject of the procedure of protection of rights in an individual public procurement procedure. Also, challenging of individual public procurement procedures cannot help determine whether any of the market participants violates regulations that ensure equality and competitiveness in the market. The Republic Commission further points out that in this sense, other legal means are available to economic entities to exercise the protection of their rights as market participants.” (?!)

How should we interpret such an attitude of the Republic Commission? The contracting authority has to get an X-ray and there’s nothing we can do if there is only one bidder on the market? It is obvious that there would be many more bidders if the technical characteristics were corrected, or if an alternative was allowed, or if the subject of procurement was divided into lots. If there really is only one specific bidder on the market, then the contracting authority should have used a negotiated procedure, and not an open one. The Republic Commission is expected to firmly oppose attempts to restrict competition. In these cases there was no need for the contracting authorities to procure thermal printers together with X-rays, because the restriction of competition for thermal printers automatically led to the restriction of competition for X-rays.

[1] Only in one case, in the procurement of the Zajecar Health Center, one characteristic was different, i.e. a lower threshold was allowed – instead of at least 500 dpi, at least 300 dpi was allowed, but that essentially did not change anything.