Additional prerequisites as in Article 76 of Public Procurement Law can only be those related to the bidder, i.e. prerequisites determining the needed level of competency and efficiency of bidder to take part in public procurement procedure in question, and as such elements of criteria with regards to the Article 84 Paragraph 2 of Public Procurement Law cannot be included. On the other hand, special requests of contracting authority regarding ways and conditions of payment, length of validity of guarantee and possible other circumstances that influence acceptability of the bids cannot be taken as additional prerequisites for participation in public procurement procedure as in Article 76 of Public Procurement Law, and therefore they, if related to the execution of the specific public procurement contract, can be determined as elements of criteria within criterion of economically most advantageous bid.

Explanation:

Article 76 Paragraph 2 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12, hereinafter: PPL) prescribes that contracting authority within tender documents establishes additional prerequisites for participation in public procurement procedure regarding financial, business, technical and personnel capacities, whenever this is necessary, bearing in mind the subject of the public procurement. Paragraph 4 of the same Article of PPL prescribes that contracting authority may determine other additional prerequisites for participation in public procurement procedure, especially if they relate to social and environmental issues.

Article 85 Paragraph 4 of PPL prescribes that prerequisites for participation from Article 75 and 76 of PPL cannot be determined as elements of criteria. Therefore, bearing in mind the quoted legal provisions, it undoubtedly ensues that defining of additional prerequisites for participation in public procurement procedure is prescribed as additional proof for fulfilment of requirements regarding competency of bidders to take part in public procurement procedure in question. Depending on the subject of public procurement in question, additional prerequisites in accordance with PPL are defined through need to fill certain financial, business, technical or personnel capacities, or as an answer to certain social or environmental issues.

Provisions of PPL precisely define that neither additional prerequisites for participation, nor mandatory prerequisites for participation in public procurement procedure prescribed in Article 75 of PPL cannot be set as elements of criteria in public procurement procedures.

Article 8 Paragraph 1 Point 9 of Regulation on Mandatory Elements of Tender Documents in Public Procurement Procedures and Way to Prove Fulfilment of Requirements (“Official Gazette of Republic of Serbia” no. 29/13 and 104/13, hereinafter: Regulation) prescribes that instruction to bidders on how to create a bid contains amongst other things the data about requests of contracting authority regarding contents of the bid, as well as conditions of conducting of public procurement procedure, and also requests regarding ways and conditions of payment, length of validity of guarantee and possible other circumstances influencing acceptability of the bids.

Republic Commission interprets the quoted provision to mean that requests of contracting authority related to the contents of the bid and conditions for conducting of the public procurement procedure and closely defining the rights and responsibilities of the parties through defining of elements of the contract, do not present additional prerequisites for participation of bidders in public procurement procedures, in accordance with Article 76 of PPL. The reason for this lies in the fact that purpose of introducing additional prerequisites is to ensure and enable participation of bidders in public procurement procedures in accordance with the specific characteristics of public procurement subject and with regards to the ability and capacity of a bidder to execute public procurement contract in question, which in turn are related to the competency and efficiency of a bidder as economic entity.

Therefore, as mentioned requests do not present additional prerequisites for participation in public procurement procedure in accordance with Article 76 of PPL, but merely the requests of contracting authority contained in tender documents and related to the contents of the bid, in previously described manner, influencing decision on acceptability in a way that failure to fulfil them makes it impossible to determine the essential contents of the bid, Republic Commission establishes that it is not contrary to the provisions of PPL to determine such particular requests of contracting authority, no matter which term contracting authority used to name them, as elements of criteria of economically most advantageous bid (for example delivery deadline, period of validity of warranty, continuing expenses etc.) as well. Namely, bearing in mind that mentioned requests of contracting authority do not present additional prerequisites for participation in public procurement procedure in accordance with Article 76 of PPL, and as they do not relate to the status and capacity of a bidder to take part in public procurement procedure, but to execute public procurement contract to be awarded after public procurement procedure in question is completed, as well as to the closer defining of elements of the contract, Republic Commission believes that it is not forbidden to determine them as elements of criteria within criterion for economically most advantageous bid.

Regarding the above, if mentioned special requests of contracting authority are determined as elements of criteria for awarding the contract within criterion of economically most advantageous bid, Republic Commission especially emphasizes that contracting authority is obliged to take into consideration that these special requests have to relate to the execution of the public procurement contract to be concluded after public procurement procedure in question is completed, as well as that they are to be defined completely in accordance with provisions of the Article 84 Paragraph 2 of PPL, i.e. they are to be described and valued exclusively in a non-discriminating way logically connected to the public procurement subject.