The fact that in the open procedure or in the second phase of restrictive procedure initiated before April 1st, 2013, all of the bids contracting authority received were incorrect and/or unacceptable, cannot present legal basis for conducting of negotiated procedure as of Article 35 Paragraph 1 Point 1 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12) initiated after April 1st, 2013.

Explanation:

Article 178 of Public Procurement Law (“Official Gazette of Republic of Serbia” no. 124/12; hereinafter: PPL) prescribes this law becomes effective as of April 1st 2013, except the provisions of Article 78 which are to become effective as of September 1st 2013.

Article 172 Paragraph 1 of PPL prescribes that the proceedings initiated before the PPL/2012 became effective will be regulated by legislation which was effective at the time they were initiated.

Article 35 Paragraph 1 Point 1 of PPL prescribes that Contracting authority may conduct negotiated procedure with invitation to bid where in open procedure, restricted procedure, or qualification procedure, or in competitive dialogue, all bids received were unacceptable, provided that the originally defined requirements for participation in the procedure, technical specifications and criteria are not altered.

The quoted provision of Article 35 of PPL means that legal basis or reason for negotiated procedure as defined in this provision is the fact that contracting authority previously received only unacceptable bids where in open procedure, restricted procedure, or qualification procedure, or in competitive dialogue. Therefore, these legal bases understand expert evaluation of the bids which would conclude that all the bids submitted in the quoted procedures were unacceptable. The term „acceptable bid” is defined in the Article 3 Paragraph 1 Point 33 of PPL and it is different from the terms „correct” or „acceptable” bid as defined by previous Public Procurement Law („Official Gazette of Republic of Serbia” no.116/08).

Therefore, the position of Republic Commission is that quoted legal basis for negotiated procedure as of Article 35 Paragraph 1 Point 1 of PPL must only appear after April 1st, 2013, when this Law became effective. In other words, conducting of negotiated procedure is possible only if contracting authority in accordance with PPL previously initiated and conducted open, restricted procedure, or qualification procedure, or in competitive dialogue after April 1st 2013, received only unacceptable bids.