Request for protection of rights (hereinafter: PoR request) is a submission under Article 204, Paragraph 2, of the Law on Public Procurement (“Off. Gazette of the RS“, No. 91/2019, 92/2023; hereinafter: PPL) that may be submitted throughout PP procedure, unless otherwise provided for by the PPL, no later than 10 days from the day the contracting authority’s decision  finalizing PP procedure in line with this Law is published on the Public Procurement Portal (hereinafter: PP Portal).

PoR request may be submitted  electronically via the PP Portal, and it is delivered simultaneously to both contracting authority and the Republic Commission, whereas the  day when PoR request was submitted via the PP Portal is being considered as the day of receipt.

PoR request may be submitted for exercising right to legal protection by an economic operator, candidate or bidder, who had or have an interest in awarding the contract or framework agreement at issue, and who argue that due to contracting authority’s actions contravening the provisions of the PPL they sustained or could sustain damage resulting from the awarding of contract or framework agreement contrary to the provisions of the PPL.

PoR request may also be submitted, on behalf of the public interest, by:

• Public Procurement Office
• State Audit Institution
• competent Attorney General’s Office

whenever they learn, in exercise of their powers, about irregularities in PP procedures.

Provision of Article 204, Paragraph 4 of the PPL prohibits the filing of PoR request aimed at achieving a purpose other than one for which this right was established, while Article 5 sets forth that PoR request may not challenge choices of procedure type, content of the public notice and tender documentation, if it challenges possible deficiencies and irregularities not previously signaled to the contracting authority as provided for by Article 97 of the PPL.

Deadlines for filing PoR request are provided for under Article 214 of the PPL according to the type of the actual PP procedure and the stage of it in which the actions challenged by the complainant were taken, while Article 215 of the PPL sets forth deadlines for challenging the legality of the awarded contract which resulted from contracting authority’s having applied the provisions of Articles 11 to 21 of the PPL.

Pursuant to Article 216 of the PPL, submission of PoR request defers further actions of contracting authority in the PP procedure at issue until the procedure for protection of rights is completed, except in negotiated procedure under Article 61, Paragraph 1, Item 2) of the PPL.

Permissibility of actions to be taken by contracting authority after submitted PoR request, depends on decision of the Republic Commission pursuant to with Article 216, Paragraph 2 of the PPL.

CONTENT OF THE REQUEST FOR PROTECTION OF RIGHTS:

Request for protection of rights contains:

• name and address of complainant and contact person;
• name and address of contracting authority;
• data on public procurement that is the subject of request, and/or on contracting authority’s decision;
• facts and evidence of violations of laws under Article 204, Paragraph 1 of this Law;
• complainant’s signature.

With request for protection of rights, complainants also submit to contracting authority their authorization for representation in the procedure for protection of rights if actions in this procedure are taken by a proxy.

Complainants with permanent or temporary residence or business seat abroad, have to name their proxy for the receipt of submission in the Republic of Serbia in their PoR requests, with all necessary data for communication with the designated person.

With request for protection of rights, complainant also has to submit to contracting authority a proof of having paid the fee under Article 225 of the PPL, that being any document from which may be inferred that relevant transaction was made in the proper amount under Article 225 of the PPL and that it referred to relevant PoR request.

PROCEDURE FOR THE PROTECTION OF RIGHTS

Procedure for protection of rights, in accordance with Article 204, Paragraph 1 of the PPL, is a procedure of legal protection related to a PP procedure pursuant to this Law, a procedure for awarding contract pursuant to the law governing public-private partnerships and concessions and to other cases pursuant to the law, which consist of:

1) preliminary proceeding, conducted by contracting authority, and

2) proceedings before the Republic Commission.

The provisions of Articles 205 to 210 of the PPL provide for the principles in the procedure for protection of rights that also apply, mutatis mutandis, in other procedures within the competences of the Republic Commission, as follows:

– principle of legality

– principle of efficiency

– principle of accessibility

– adversarial principle

– principle of literacy

PRELIMINARY PROCEEDINGS CONDUCTED BY CONTRACTING AUTHORITY

Upon receipt of PoR request, contracting authority is obliged pursuant to Article 218 of the PPL to immediately submit a copy of the request to the selected bidder, who may submit their opinion on the request so that contracting authority receives it no later than two working days from the day the selected bidder received a copy of the request.

Upon receiving PoR request, contracting authority checks the fulfillment of procedural assumptions for deciding on the merits of the request, by verifying:

• whether this request also contains evidence of the paid fee in accordance with Article 225 of the PPL, from which may be inferred that relevant transaction was made in the proper amount under Article 225 of the PPL and that it referred to relevant PoR request
• whether PoR request was timely submitted,
• whether the complainant has legal standing to complain.
• whether PoR request has the content provided for under Article 217, Paragraph 1, of the PPL.

Contracting authority will reject PoR request by procedural decision, without prior summoning the complainant to supplement it, where such request does not contain evidence of paid up fee under Article 225 of the PPL (from which may be inferred that relevant transaction was made in the proper amount under Article 225 of the PPL and that it referred to relevant PoR request); where complainant has a permanent or temporary residence or a business seat abroad, if such request does not contain name of proxy for the receipt of submission in the Republic of Serbia with all necessary data for communication with the designated person; and where the content of such request, filed on behalf of the complainant by proxy who is an attorney, contains deficiencies that prevent further proceeding.

Also, where PoR request was filed belatedly or by a person lacking the legal standing to complain, contracting authority will issue procedural decision rejecting such PoR request.

Where the content of a request differs from one set forth by Article 217, Paragraph 1, of the PPL so that such deficiency prevents further proceeding, contracting authority will without delay summon it to supplement the request within three working days, inform it of its duty to comply and remedy identified deficiencies, and caution it about the consequences of failure to comply.

Where contracting authority fails to comply within the set deadline, or fails to supplement it in line with contracting authority’s notification, the contracting authority will issue procedural decision rejecting such request.

Complainant may challenge contracting authority’s procedural decision rejecting PoR request by filing an appeal to the Republic Commission within three days from the day of receipt of this procedural decision.

An appeal against contracting authority’s decision may be submitted  electronically via the PP Portal, and it is delivered simultaneously to both contracting authority and the Republic Commission, whereas the  day when PoR request was submitted via the PP Portal is being considered as the day of receipt.

Where contracting authority finds the PoR request is properly drafted in terms of fulfillment of procedural assumptions, either after preliminary examination or after its supplementing if so requested, then within five working days from the day of receipt of a proper request, in line with Article 220, Paragraph 1 of the PPL, contracting authority may only proceed in one of the following two ways:

• if it finds that contentions of a proper PoR request are grounded, and that violations of the PPL can be removed in the same PP procedure, it will issue decision endorsing such request and partially annulling relevant PP procedure with the statement on all accounts from such PoR request, and will deliver this decision to the complainant, bidders, and the Republic Commission within three days from the day it has been taken,
• if it finds that contentions of the PoR request at issue are not grounded or that evaluation of the merits of contentions may result in annulment of the entire PP procedure, it will submit its response to the Republic Commission with the statement on all accounts from PoR request, together with complete documentation from the PP procedure at issue, and will deliver a copy of response to the complainant (in observance of the adversarial principle).

The complainant may submit their rejoinder with opinion on contracting authority’s response, within two working days from the day of receipt of response, to the Republic Commission and the contracting authority.

Where contracting authority issues decision partially annulling the PP procedure, but without evaluating all contentions of the PoR request as grounded, the complainant may submit to the Republic Commission and contracting authority written statement on the continuation of the procedure before the Republic Commission within two working days from the day of receipt of the decision, in accordance with Article 220 Paragraph 3, of the PPL to continue the procedure for protection of rights before the Republic Commission, whereby the day of submission through the Public Procurement Portal is considered the day of receipt.

Where contracting authority fails to act in accordance with Article 220, Paragraph 1 of the PPL, complainant may submit to the Republic Commission and contracting authority a written statement on continuing the procedure of protection of rights before the Republic Commission in accordance with Article 220, Paragraph 4, of the PPL within 20 working days from the day of submitting PoR request , whereby the day of submission through the Public Procurement Portal is considered the day of receipt.

After receiving a copy of written statement on continuing the procedure for protection of rights before the before the Republic Commission  under Article 220, Paragraphs 3 and 4, of the PPL, contracting authority has a three-day deadline  to supply to the Republic Commission the complete documentation needed for deciding on the PoR request at issue.

Upon receipt of the written notification on withdrawing the request for protection of rights before undertaking the actions referred to in paragraph 1 of Article 220, the contracting authority/entity shall discontinue the protection of rights proceedings by a decision.

PROCEEDINGS BEFORE THE REPUBLIC COMMISSION

Procedure for protection of rights before the Republic Commission begins upon reception of either contracting authority’s response to PoR request and complete documentation related to the PP procedure at issue, or written statement on continuation of the procedure submitted by the complainant to the Republic Commission and contacting authority, in accordance with the provisions of the PPL.

Contracting authority ought to deliver its response to PoR request and complete documentation concerning the PP procedure at issue to the Republic Commission within five working days from the day of receipt of proper PoR request, either by direct delivery at the reception office of the Administration for Joint Services of Republic Bodies, or by mail in accordance with the positive legislation.

The Republic Commission preliminary checks the fulfillment of procedural assumptions for deciding on the merits of the PoR request, by verifying:

• whether this request also contains evidence of the paid fee in accordance with Article 225 of the PPL from which may be inferred that relevant transaction was made in the proper amount under Article 225 of the PPL and that it referred to relevant PoR request
• whether PoR request, or written statement on continuation of the procedure before the Republic Commission was filed in a timely manner;
• whether the complainant has legal standing to complain;
• whether PoR request has the content provided for under Article 217, Paragraph 1, of the PPL.

The Republic Commission will reject PoR request by procedural decision, without prior summoning the complainant to supplement it, where such request does not contain evidence of paid up fee under Article 225 of the PPL; where complainant who has a permanent or temporary residence or a business seat abroad, in its PoR request does not appoint the proxy for the receipt of submission in the Republic of Serbia with all necessary data for communication with the designated person; and where the content of such request, filed on behalf of the complainant by a proxy who is an attorney, contains deficiencies that prevent further proceeding.

Where PoR request is found to have been filed belatedly or by a person lacking the legal standing to complain, the Republic Commission will issue procedural decision rejecting such request.

Where it finds that the statement on continuation of procedures for protection of rights before the Republic Commission is late or inadmissible, the Republic Commission will reject it by a procedural decision.

Where PoR request does not have the content provided for under Article 217, Paragraph 1, PPL, and such deficiency prevents further proceeding, the Republic Commission will without delay summon it to supplement the PoR request within three working days, inform it of its duty to comply and remedy identified deficiencies, and caution it about the consequences of failure to comply.

Where complainant fails to comply within the set deadline, or fails to supplement it in line with the Republic Commission’s summoning, the Republic Commission will issue procedural decision rejecting such PoR request.

Where all procedural assumptions for adjudicating on merits of the filed PoR request are satisfied, in terms of properness, timeliness, and legal standing to complain of complainant, to initiate procedures for protection of rights, the Republic Commission will begin determining the state of facts necessary for deciding of the merits of the filed request for the protection of rights.

The Republic Commission decides within the limits of procedurally proper PoR request, and is obliged to give reasoning on all violations of the PPL that complainant could not have been aware of and which affected the contracting authority’s decision in PP procedure, pursuant to Article 226, Paragraph 1 of the PPL.

In the procedure for protection of rights, the Republic Commission may also annul a PP procedure where, in relation with the contentions of PoR request, it finds violations of the PPL due to which the procedure cannot be completed in a lawful manner, in accordance with the provision of Article 226, Paragraph 2 of the PPL.

The Republic Commission will examine evidence it finds relevant for a just and lawful decision on the filed PoR request in accordance with Article 226, Paragraph 3, of the PPL, and using, where necessary, possibilities provided for by Articles 222, 223, and 224 of the PPL.

The Republic Commission decides on the merits of the PoR request by decision pursuant to Article 226, Paragraph 3, Points 1) and 2) of the PPL, within 30 days from the day of receipt of complete documentation needed to establish the state of facts and adjudicate, whereby this deadline may, in justifiable cases, be extended by 15 days.

The Republic Commission will take a procedural decision and terminate the procedure on the basis of the written notice on waiver of the PoR request before it has taken a decision on merits.

ADMISSIBLE LEGAL REMEDIES

Decision of the Republic Commission is delivered to contracting authority, complainant, and selected bidders registred on the PP Portal within 10 (ten) days from the day it has been taken, in an electronic way, via the PP Portal whereas the  day when decision was delivered via the PP Portal to the mentioned persons is being considered as the day of receipt, according to PPL.

After it was delivered to the parties in the procedure, decision of the Republic Commission is published on the web-site of the Republic Commission and on the PP Portal.

Contracting authority is obliged to notify all participants in the procedure about the decision of the Republic Commission.

Decision of the Republic Commission cannot be appealed.

Decision of the Republic Commission can be challenged by initiating an administrative dispute within 15 days from the day of delivering this decision to the complainant.

Administrative dispute may also be initiated where the Republic Commission fails to take decision within deadlines provided for under Article 227 of the PPL.

Initiation of an administrative dispute does not delay the execution of the decision taken by the Republic Commission.

The Republic Commission notifies contracting authority about the initiated administrative dispute.

[1] The procedure at this stage is finalized either by decision on awarding contract, or by decision on concluding framework agreement, or by decision on canceling the procedure