Contracting authority may use as elements of criteria for economically most advantageous bid as in Article 85 paragraph 2 of Public Procurement Law only those elements related to the execution of specific public procurement contract. This means that elements related to other, previously concluded contracts with the bidder, cannot be used as elements of criteria. Same goes for other circumstances that are not related to the execution of specific public procurement contract.
Article 3 Paragraph 1 Point 29 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12; hereinafter: PPL) prescribes that criterion is a norm used for evaluating, comparing and assessing bids. As opposed to requirements for participation in public procurement procedure, regarding bidders and their status and ability to take part in specific public procurement procedure (Articles 75 and 76 of PPL), criteria and elements of criteria are related to the execution of specific public procurement contract and serve to help contracting authority to compare and rank all the bids that have not been rejected as unacceptable and eventually make decision on awarding the contract. Therefore, based on elements of criteria contracting authority awards specific public procurement contract to one of the bidders that meets the participation requirements and other elements of acceptable bid under Article 3 Paragraph 1 Point 33 of PPL.
Article 85 Paragraph 2 of PPL prescribes that criterion of economically most advantageous bid is based on various elements of the criterion, depending on the subject of public procurement, such as:
1) Offered price;
2) Discount to the pricelist of contracting authority;
3) Date of delivery or performance of services or works within the minimum acceptable deadline that does not compromise the quality, and the maximum acceptable deadline;
4) Current costs;
5) Cost effectiveness;
7) Technical and technological advantages;
8) Environmental advantages and environment protection;
9) Energy efficiency;
10) After-sale service and technical assistance;
11) Warranty period and type of warranties;
12) Obligations concerning spare parts;
13) Post-warranty maintenance;
14) Number and quality of engaged staff;
15) Functional characteristics, etc.
Quoted provision of Article 85 Paragraph 2 of PPL therefore establishes that besides the lowest price another criteria for award of contract that contracting authority might chose is economically most advantageous bid and this one consists of more than one element, not only the price. Possible elements of the criteria are listed as examples in mentioned provision of PPL, but these 15 elements are not the final list, as at the end of the list it is clearly stated that other elements are also possible (… „Etc. “). Republic Commission believes that besides discretion of contracting authority to choose another element of criteria that has not been included in the quoted provision of PPL, there is also the obligation of contracting authority to respect basic requirements prescribed in Article 84 of PPL for all elements of criteria – i.e. that elements of criteria have to be described and rated, cannot be discriminatory and have to be logically connected to the subject matter of public procurement. However, besides mentioned, and based on analysis of quoted elements and other provisions of PPL – especially those quoted in this explanation, we can conclude that contracting authority can chose for elements of criteria of economically most advantageous bid (as one of the quoted 15 but also some other elements that have not been quoted in Article 85 Paragraph 2 of PPL) only those that are related to the execution of specific public procurement contract, as only those elements can have undisputable logic connection to the subject matter of public procurement that is at the same time subject matter of public procurement contract and its execution. Therefore, Republic Commission believes that those elements related to realization of other, previously concluded contracts of the bidder, or other circumstances that are not related to the execution of the specific public procurement contract cannot be used as elements of criteria for economically most advantageous bid. Namely, it has been concluded that as opposed to the requirements for participation that concern the bidder itself, elements of criteria concern the execution of specific public procurement contract, as their application follows the establishing of the fact that requirements for participation have been met. This position of Republic Commission is based on provision of Article 85 Paragraph 4 of PPL that prohibits requirements for participation from Articles 75 and 76 of PPL to be used as elements of criteria. Also, the title of the section of PPL defining criteria is „Criteria for Awarding the Contract” denotes that they are related to the execution of the specific contract, i.e. that their application takes into consideration circumstances showing what the execution of the contract will be like and how it will affect the contracting authority and its business operations, which is aimed at efficiency and economy as one of the principles of public procurement.