If contracting authority in applying the Article 153 paragraph 1 point 1 of Public Procurement law by solution adopts submitted request for protection of rights, protection of rights procedure cannot continue before Republic Commission for Protection of Rights in Public Procurement Procedure. However, claimant has the right to submit new request for protection of rights in order to dispute the activities concerning public procurement procedure that contracting authority will conduct after the mentioned solution to adopt the request for protection of rights has been made. If submitted request for protection of rights disputes the contents of tender documents or invitation to submit bid or applications, and contracting authority by its solution to adopt the request for protection of rights as justifiable deems only certain of the quotations of the claimant, claimant has the right to submit request for protection of rights that will have same contents regarding the quotations that contracting authority failed to consider or deemed unjustified.
Explanation:
Article 153 paragraph 1 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12, hereinafter: PPL), prescribes that five days after receiving the complete request for protection of rights and after reviewing it, contracting authority shall:
1) accept request for the protection of rights by a decision;
2) Deliver the response to request for protection of rights and all documents from the public procurement procedure to the Republic Commission, to decide on request for the protection of rights.
Article 153 Paragraph 2 of PPL prescribes that the solution referred to in Paragraph 1 point 1 of this Article Contracting authority shall deliver to claimant, bidders and the Republic Commission, within three days from the day the decision was made.
Paragraph 3 of the same Article prescribes that in the case under Paragraph 1, item 2) of this Article, contracting authority shall inform the claimant thereon in writing, within three days from the day of sending request to the Republic Commission.
Article 149 Paragraph 2 of PPL prescribes that request for protection of rights may be filed during the entire public procurement procedure against any action of contracting authority, unless otherwise specified by this Law.
Article 149 Paragraph 11 of PPL prescribes that if in the same public procurement procedure another request for protection of rights was filed by the same claimant, the second request cannot challenge the activities of contracting authority which the claimant was aware of or could have been aware of during the submission of the previous request.
Republic Commission emphasizes that in case contracting authority makes a solution to adopt the request for protection of rights, it delivers to Republic Commission only the said decision, without documents concerning the procedure in question. Therefore, the obligation to deliver complete documents concerning the procedure in question for Republic Commission to decide in second instance is prescribed only in case contracting authority failed to make decision to adopt request for protection of rights, when law also prescribes the obligation to deliver response to request for protection of rights along with complete documents to Republic Commission, in accordance with Article 153 paragraph 1 point 2 of PPL.
Bearing in mind all this, and in accordance with the quoted provisions of PPL. Republic Commission comes to the conclusion that there is no legal basis to make a decision on submitted request for protection of rights when contracting authority makes decision to adopt said request for protection of rights.
Republic Commission also points out that in such a case claimant has a right to submit new request for protection of rights in accordance with Article 149 Paragraph 2 of PPL, which would dispute the activities of contracting authority made after decision to adopt said request for protection of rights was made.
At the same time, Republic Commission emphasizes that in case request for protection of rights disputes the contents of tender documents or invitation for submitting of bids, with more than one allegation, and if contracting authority with its decision adopts only some of the allegations and in accordance with them changes tender documents, claimant cannot bear the consequences prescribed by Article 149 Paragraph 11 of PPL regarding those allegations of request for protection of rights that contracting authority failed to take into consideration or deemed unsubstantiated. This means that in case only some of the allegations from the request for protection of rights are adopted claimant could in new request for protection of rights in the same public procurement procedure dispute not only part of tender documents or invitation to submit bids, which contracting authority after adopting request for protection of rights changed, but also reiterate the allegations from the initial request for protection of rights that contracting authority failed to take into consideration or deemed unsubstantiated. However, within the new request for protection of rights claimant may not quote new allegations concerning parts of tender documents or invitation to submit bids which contracting authority after making decision to adopt request for protection of rights does not change and which at the moment invitation to submit bids and tender documents were published the claimant was aware of, as this part of tender documents or invitation to submit bids are regulated by Article 149 paragraph 11 of PPL.