If requirements for participation in public procurement procedure from Article 75 of Public Procurement Law and instructions on how to prove that those requirements are fulfilled are not clearly and precisely specified within tender documents, bidder taking part in public procurement procedure cannot bear consequences of failure of contracting authority to prepare tender documents in such a way to enable bidders to prepare acceptable offer, and in this case contracting authority is obliged to establish whether or not mandatory requirements for participation in specific public procurement procedure are fulfilled, as per Article 93 Paragraph 1 of Public Procurement Law.
Article 3 Paragraph 1 Point 33 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12; hereinafter: PPL) states that acceptable bid is a bid which is timely, which contracting authority did not reject due to essential deficiencies, which is adequate, which does not restrict or condition either the rights of contracting authority or the obligations of bidder, and which does not exceed the amount of estimated value of concrete public procurement.
Article 61 Paragraph 1 of PPL prescribes that contracting authority shall prepare tender documents in a way that bidders can prepare acceptable bids based upon it.
Article 75 Paragraph 1 of PPL states that bidder in public procurement procedure has to prove:
It is registered with the competent body, or registered in an appropriate register;
It and 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;
It has not been prohibited to perform its business activities through any measure in force at the time of publishing of tender notice or invitation to submit bids;
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 on its territory;
It has valid permit issued by competent body to carry out business activity which is the subject of public procurement, if such permit is prescribed by separate regulation.
Article 77 Paragraph 1 of PPL prescribes that bidder proves the fulfillment of requirements from Article 75 Paragraph 1 of PPL by submitting the following:
Note from register of the competent authority;
Certificate of the competent court;
Certificate of the competent court or the competent authority for registration of economic operators;
Certificate of the competent tax authority and organization for compulsory social insurance, or of the competent authority, that bidder is undergoing privatization process;
Valid license for the performance of relevant activity, issued by the competent authority.
Article 93 Paragraph 1 of PPL prescribes that contracting authority may request bidders to supply additional explanations that will help contracting authority examine, evaluate and compare bids, and it may also conduct control (inspection) of bidder or its subcontractor.
Article 106 Paragraph 1 of PPL prescribes the obligation of contracting authority to reject a bid that has considerable deficiencies, as bidder failed to prove fulfillment of mandatory requirements for participation in public procurement procedure.
Article 10 Paragraph 1 of Rulebook on Mandatory Elements of Tender Documents in Public Procurement Procedures and Ways to Prove Fulfillment of Requirements (“Official Gazette of Republic of Serbia” no. 29/2013 and 104/2013; hereinafter: Rulebook) prescribes that tender documents contain requirements that bidder must fulfill in order to take part in public procurement procedure, as well as ways to prove it.
Article 10 Paragraph 3 of Rulebook prescribes that tender documents include mandatory requirements for participation in public procurement procedure from Article 75 of PPL.
Article 10 Paragraph 4 of Rulebook states that instruction on proving fulfillment of requirements from Article 75 of PPL has to include one or more precise confirmations prescribed by PPL and Rulebook for every of requirements for participation in public procurement procedure, as well as competent institution to issue those confirmations.
The quoted provisions mean that every bidder has to fulfill mandatory requirements for participation in public procurement procedure and as mandatory these requirements are precisely defined by PPL. When it comes to ways to prove fulfillment of the requirements, provisions of PPL and Rulebook precisely define the evidence proving the fulfillment of requirements and institution competent for issuing confirmations.
If tender documents do not include clearly defined mandatory requirements that every bidder must fulfill in order to take part in specific public procurement procedure, and instruction on how to prove the fulfillment of each of the requirements, including precise confirmations prescribed by PPL and Rulebook, as well as institution competent for issuing confirmations, contracting authority during expert evaluation of bids may not estimate submitted evidence in a way that is harmful to the bidder, but is instead obliged to demand additional explanation that would help examine, evaluate and compare bids, in accordance with the Article 93 Paragraph 1 of PPL. In doing so, contracting authority is to treat all participants in public procurement procedure in the same way.
In other words, under the previously explained circumstances, bidder cannot bear negative consequences arising from failure of contracting authority to prepare tender documents in accordance with the provisions of PPL and Rulebook. Instead, as mandatory requirements and ways to prove their fulfillment are precisely defined by provisions of PPL and Rulebook, contracting authority is obliged to establish whether or not bidder fulfills mandatory requirements to participate in specific public procurement procedure by demanding bidder to prove fulfillment of the said requirements by submitting one or more confirmations prescribed by PPL and Rulebook, in accordance with Article 93 Paragraph 1 of PPL.