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Fulfillment of mandatory eligibility requirements for participation in public procurement procedures and significance of registering a bidder in the appropriate register

Fulfillment of mandatory eligibility requirements for participation in public procurement procedures and significance of registering a bidder in the appropriate register

To be able to participate in public procurement procedures, as a bidder, there are several mandatory eligibility requirements that have to be fulfilled no matter the type of procedure. Besides those requirements, there can be also additional conditions that are not required by the law, but the contracting authority can require them in tender documents according to its needs. Conditions that every bidder needs to fulfill are stated in Article 75 of the Public Procurement Law (“Official Gazette of the RS”, No. 124 of 29 December 2012, No. 14 of 4 February 2015, No. 68 of 4 August 2015).

Fulfillment of mandatory eligibility requirements for participation in public procurement procedures and significance of registering a bidder in the appropriate register

 

To be able to participate in public procurement procedures, as a bidder, there are several mandatory eligibility requirements that have to be fulfilled no matter the type of procedure. Besides those requirements, there can be also additional conditions that are not required by the law, but the contracting authority can require them in tender documents according to its needs.

Conditions that every bidder needs to fulfill are stated in Article 75 of the Public Procurement Law (“Official Gazette of the RS”, No. 124 of 29 December 2012, No. 14 of 4 February 2015, No. 68 of 4 August 2015).

 

Every bidder in a public procurement procedure must prove that:

 

  1. It is registered with the competent body, or entered in the appropriate register;
  2. It or its legal representative have not been convicted for any criminal act as members of an organized criminal group; that it has not been convicted for commercial criminal offence, criminal offence against environment, criminal offence of receiving or offering bribe, criminal offence of fraud;
  3. It has paid due taxes and other public charges in accordance with laws of the Republic of Serbia or a foreign country if its registered address is in its territory;
  4. It has valid permit issued by competent body to carry out economic activity, which is the subject of public procurement, if such permit is stipulated by special regulation.

Also, the bidders have to explicitly state in their offer that they fulfilled obligations under applicable legislation concerning safety at work, employment and working conditions, protection of environment, and that at the time of the submission of bid they have no ban in force on performing economic activities.

 

This means, that contracting authorities have no right to change mandatory requirements provided by the Public Procurement Law, nor they have the right to determine whether they are going to require their fulfillment from the bidder. These conditions already have to be a part of the tender documentation. With the fulfillment of these mandatory conditions the bidder proves that it is capable to conduct the public procurement procedure, but this of course will not affect further ranking of the bidders in public procurement, nor it is a criteria in a final selection of the bidders.

 

Besides providing the mandatory conditions in tender documentation, Contracting authority also has to prescribe which documents are necessary to prove the fulfillment of these conditions (e.g. statement on registered data from the Serbian Business Registers Agency, statements from competent courts, or a confirmation from the Ministry of internal affairs that the bidder has not been convicted for commercial criminal offences).

 

The condition from Article 75 (5) which is the requirement for the bidder to have valid permit issued by a competent body to carry out economic activity, which is the subject of public procurement, is a special condition because it needs to be fulfilled only if such a permit is required by the special regulation. Only in the case when this kind of permit is required by the special regulation or because of the very object of the public procurement procedure, the contracting authority is obliged to stipulate this condition in tender documentation.

 

By registering at the register of bidders at the Serbian Business Registers Agency, bidders do not have to prove that they fulfilled mandatory conditions from Article 75 (1-4). This does not apply to the condition from Article 75 (5), which requires possession of the valid permits issued by a competent authority.

 

Because this registry data is publicly available on the web-site of the Serbian Business Registers Agency, contracting authority has to check by itself if the bidder is registered at the bidders register, even if the bidder did not provide the evidence of the fulfillment of mandatory conditions. The bidder does not even have to state whether it is registered at the proper register. This was confirmed by the Republic Commission for the Protection of Rights in Public Procurement Procedures on 27.12.2013. If the contracting authority does the opposite and considers this kind of application unacceptable, request for the protection of the rights would definitely be justified.

 

Collecting all the required documentation for fulfilling the conditions in this first phase of public procurement procedure can take a lot of time and money, and the deadlines can be very short. That is why registering at the bidders register at the Serbian Business Registers Agency proves to be even more significant, as it eases up the whole process of applying.

 

It saves a lot of time especially if we consider the fact that the bidders have to collect all of these documents again every time when they apply for a new public procurement procedure, because all documents and evidence have a limited expiry date.

 

Time saving is crucial in business practice, especially for companies that participate frequently in the public procurement procedures.

 

Milana Aleksić

 

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