Presentation given by Branislav Cvetkovic of the Serbian Republican Commission for Protection of Rights in PPPs at the 7th Regional Public Procurement Conference held in Vlora on 9-10 Sept 2014.

1. REPUBLIC OF SERBIA
PROTECTION OF RIGHTS
IN PUBLIC PROCUREMENT PROCEDURES
Branislav Cvetkovic Member of the Republic Commission for Protection of Rights in Public Procurement Procedures www.kjn.gov.rs

2. Republic Commission for Protection of Rights in Public Procurement Procedures
Republic Commission for Protection of Rights in Public Procurement Procedures is an autonomous and independent body of Republic of Serbia, ensuring the protection of rights in public procurement procedures
President and six Members, appointed to a five-year period
President and Members of Republic Commission are appointed by the National Assembly after a public competition is conducted
Conditions for appointment:
•Relevant work experience in the field of public procurement
•Meeting the requirements for appointment of a Primary Court judge (4 Members and President)
The obligation to submit the report on its operations every six months (contents of it specified by the Law)

3. Competences of the Republic Commission
Decides on requests for protection of rights in all public procurement procedures (equivalent to revision of public procurement procedures as in Directive EU 2007/66)
Decides in accordance with special authorities:
•Monitoring of the implementation of its decisions
•Imposing of fines
•Motion for dismissal of responsible persons
•Annulment of public procurement contracts
•Conducting of minor offence proceedings in the first instance
•Prohibition of abusing request for the protection of rights

4. Protection of Rights Procedure - Capacity to File Request for Protection of Rights -
The protection of rights procedure is initiated by submitted request for protection of rights, which may be filed against any action of the contracting authority in a public procurement procedure
A request for the protection of rights may be submitted by :
•Bidder, applicant, candidate(participants in a public procurement procedure) or interested person
•Trade Association
•Public Procurement Office
•State Audit Institution
•Public Attorney
•Civil Supervisor

5. Protection of Rights Procedure - First Instance: Contracting Authority -
Within 5 days from the day it received a timely submitted request for the protection of rights, the contracting authority:
•Accepts the request for the protection of rights or
•Submits a respond to the request for the protection of rights and all documents from the public procurement procedure to the Republic Commission to decide upon
Request for the protection of rights suspends further activities of contracting authority in public procurement procedure, until decision is made upon submitted request for the protection of rights (Article 150 PPL)

6. Protection of Rights Procedure - Second Instance: Republic Commission -
Republic Commission within 20 days makes decision:
•Before it makes a decision, may require additional documents, data, explanations and opinions from the contracting authority, claimant or other participants in the procedure and the Public Procurement Office
•Decides on all allegations within the scope of the submitted request for the protection of rights
•Ex officio establishes whether all legal requirements for conducting of a public procurement procedure have been met; whether there was a violation of the law, due to which the contract may be annulled, or that the contract is null and void

7. Protection of Rights Procedure - Second Instance: Republic Commission -
The manner of operations of the Republic Commission is specified by the Law and the Rules of Procedure
The manner of operations of the Republic Commission:
•Panels consisting of three members
―Procedure for the protection of rights (possibility to engage court experts)
―Special authorities
•General session (President and all Members)
―Rules of Procedure
―Principal legal position
―Reports on work
―Financial statements
―Other acts and documents
The Republic Commission publishes on its official website all adopted decisions and other acts

8. Special Authorities - Monitoring of the Implementation of Decisions -
The Republic Commission monitors and controls implementation of its decisions
The contracting authority must comply with the orders from the decision of the Republic Commission and within the deadline specified in it
The Republic Commission may require the contracting authority to submit a report, documents and statements of representatives concerning implementation of a decision and may inspect the contracting authority
Republic Commission may impose a fine if contracting authority fails to comply with the orders from the decision

9. Special Authorities - Imposing of Fines -
The Republic Commission may impose the following fines for procedural misconduct in the procedure of the protection of rights:
•To the contracting authority in the amount from RSD 80,000 to RSD 1,000,000 (EUR 700 – 8,700)
•To the responsible person of the contracting authority in the amount from RSD 20,000 to RSD 80,000 (EUR 170-700)
5 legal bases for imposing of a fine
If a procedural misconduct occurs more than once, the Republic Commission may propose the dismissal of the responsible person

10. Special Authorities - Annulment of contracts -
The Republic Commission may annul a public procurement contract
A request for annulment of a contract may be filed by a claimant or an interested party within the following deadlines:
•30 days of the date of learning of the reason for annulment (subjective deadline)
•No later than a year from the day the contract was concluded (objective deadline)
5 legal bases for annulment of contracts

11. Special Authorities - Minor Offence Proceedings -
The Republic Commission conducts minor offence proceedings in the first instance
The Public Procurement Law prescribes 23 minor offences for the contracting authority (and the responsible person) and 5 minor offences for bidders
In minor offence proceedings, fines imposed range from RSD 80,000 (EUR 700) to RSD 1,500,000 (EUR 13,000)
Minor offence proceedings are initiated upon request of :
•Public Procurement Office
•State Audit Institution
•Other authorized institution
Against the decision made in minor offence proceedings in the first instance, an appeal may be submitted to Higher Misdemeanor Court.

12. Special Authorities - Prohibition of Abusing Request for the Protection of Rights -
It is prohibited to file request for the protection of rights for purposes other than those for which that right has been recognized
The Republic Commission shall ex officio pay attention to abusing of request
It shall be assumed that the claimant, whose three requests for the protection of rights have been refused within six consecutive months, has abused the request, unless proved otherwise
The Republic Commission will impose a fine to the claimant whom it finds to have abused the request

13. Resolved cases
(Request for the protection of rights)
2011
2012
2013
Refused requests
246
262
351
Rejected requests
103
83
81
Fully annulled procedure
242
361
369
Partially annulled procedure
348
364
540
Suspended procedure
31
23
51
Dismissed statement
90
89
96
Returned to the contracting authority for handling
1
0
0
Resolved otherwise
4
49
34
TOTAL
1065
1231
1522
Statistics on Operations of the Republic Commission*
*Source: Commission's annual report submitted to the National Assembly

14. Further Activities of the Republic Commission
Continuation of coordination and cooperation with other competent authorities in the country
Improvement of international and particularly regional cooperation
Improved availability of information to the public concerning the work of the Republic Commission:
•Software application for more efficient search of decisions of the Republic Commission published on its official website
•Presentation of the relevant jurisprudence of the Republic Commission through a newsletter to as many interested persons as possible
•Publishing of collections of typical decisions and pprincipal legal positions

15. THANK YOU FOR YOUR ATTENTION!