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REPUBLIC OF SERBIA Negotiating Group for the Chapter 5-Public Procurement Bilateral screening: Chapter 5 PRESENTATION OF THE REPUBLIC OF SERBIA Brussels, May 13th 2014 PUBLIC PRIVATE PARTNERSHIP AND CONCESSIONS Hana Hukić Member of the Republic Commission for Protection of Rights in Public Procurement Procedures [email protected] LEGAL FRAMEWORK Law on Public-Private Partnership and Concessions - adopted in November 2011 (Official Gazzette of Republic of Serbia, n.88/11) Bylaws adopted: • Decree on Supervising Implementation of the Public Contracts on Public Private Partnership (Official Gazette of the Republic of Serbia n. 47/2013) • Rules on Content and Operation of the Registry of Public Contracts (Official Gazette of the Republic of Serbia n.57/2013) Other documents: Commission on PPP adopted: • Value for Money Methodology • Public Contract Head of Terms • Model of the Direct Agreement • Law Commentary Relevant systemic laws: • Public Procurement Law (“Official Gazette of the Republic of Serbia”, No. 124/2012) • Law on Contracts and Torts (“Official Gazette of SFRY”, No. 29/78, 39/85, 45/89 – decision of the Constitutional Court of Yugoslavia and 57/89, “Official Gazette of FRY”, No. 31/93 and “Official Gazette of Serbia and Montenegro”, No. 1/2003 – Constitutional Charter) • Law on Companies (“Official Gazette of the Republic of Serbia”, No. 36/2011 and99/2011) • Law on Public Property (“Official Gazette of the Republic of Serbia”, No. 72/2011 and 88/2013) Sectoral legislation: • Law on Utility Services (“Official Gazette of RS”, No. 88/11) • Law on Energy (“Official Gazette of RS”, No. 57/11, 80/11 - corrigendum, 93/12, 124/12) • Law on Mining and Geological Research (“Official Gazette of RS”, No. 88/11) • Law on Waters (“Official Gazette of RS”, No. 30/19, 93/12) • Law on Public Roads (“Official Gazette of RS”, No. 101/05, 123/07, 101/11, 93/12, 104/13) • Law on Transport in Road Traffic (“Official Gazette of RS”, No. 46/95, 66/01, 61/05, 91/05, 62/06, 31/11) • Law on Railway (“Official Gazette of RS”, No. 45/13) • Law on Navigation and Inland Waterway Ports (“Official Gazette of RS”, No. 73/10, 121/12) • Law on Air Traffic (“Official Gazette of RS”, No. 73/10, 57/11, 93/12) • Law on Postal Services (“Official Gazette of RS”, 18/05, 30/10) Scope of the Law on PPP and Concession • This law regulates: - the conditions and manner for preparing, proposing and approving project proposals for public-private partnership (hereinafter: PPP) - public bodies and parties in charge of proposing and implementing public-private partnership projects - the rights and obligations of public and private partners - PPP contracts with or without concession elements (hereinafter: public contract) - the scope of concessions - the authorities and parties in charge of the concession approval procedure, the termination of concessions - legal protection in the public contract award procedures, protection of the rights of parties participating in the procedure - the establishment and the competences of the PPP Commission - other issues relevant to PPP with or without elements of concession Exemptions This law shall not apply to public-private partnerships with or without elements of concession if: • the establishment of a PPP would require enabling access to the information whose disclosure would endanger the security of the Republic of Serbia • such partnership was based on international contracts that the Republic of Serbia concluded for the purpose of joint implementation or utilization of projects • the subject of that partnership was the use of a public telecommunications network or the provision of telecommunications services Principles 1 • The regulation of conditions, manner and procedures for the award of public contracts is based on the following principles: - protection of public interest - efficiency - transparency - equal and just treatment - free market competition - proportionality - environmental protection - autonomous will of parties to the contract Principles 2 • When implementing a concession granting procedure, the concession granting authority is obliged, apart from the above mentioned principles, to implement: - the principle of free movement of goods - the principle of free provision of services - the principle of prohibition of discrimination - the principle of mutual recognition • The principles are used in the interpretation of provisions of this law The Concept of Public-Private Partnership Definition: • The public-private partnership (hereinafter: PPP) - a longterm cooperation between a public and a private partner for the purposes of providing financing, construction, reconstruction, management or maintenance of infrastructure and other facilities of public interest and provision of services of public interest, which may be contractual or institutional Concessions Definition: • A concession - contractual PPP with the elements of concession in which a public contract regulates the commercial use of natural resources or assets in general use which are publicly owned or the performance of an activity of public interest which the competent authority transfers to a national or foreign person, for a specific period of time, under specially prescribed conditions, against the payment of a concession fee by the private or the public partner, with the private partner bearing the risk associated with the commercial use of the subject of concession Concessions for Public Works/Services Definition: • Concession for Public Works - a contractual relation equal to the public procurement contract by which works are purchased in accordance with the law regulating public procurement, except for the fact that the fee for public works consists either of the actual right to commercial use of the works performed or of that right along with the payment • Concession for Services - a contractual relation equal to the contract for public procurement of services in accordance with the law regulating public procurement, if the fee for the provided services consists either of the actual right to commercial use or the provision of services or of that right along with the payment Proposing PPP Projects without Elements of Concession/Concession Act Approval and adoption of the proposal: 1) Government (when the purchasing entity is the Republic of Serbia or another public body of the Republic of Serbia) 2) Government of the autonomous province (when the purchasing entity is the government of the autonomous province or another public body of the autonomous province) 3) Municipal or city assembly (when the purchasing entity is the unit of local self-government or a public body of such a unit) Award Procedure • Public Procurement Procedure (prescribed by the law regulating public procurement) - if concession which is granted consists predominantly of characteristics of concession of public works • Concession Granting Procedure (regulated by the Law on Public-Private Partnership and Concessions) - granting of a concession, or the provision of services with the right to exploit the specific service and the right to collect payment • Advisors - selection according to the law regulating public procurements • PPP contract - a public procurement contract / concession granting contract (public contract) Subjects Involved in the Process and Duration The Law recognises, regulates and defines the following: • • • • • • Public body (partner) Private Partner Consortium SPV Sub - contractors Self - initiated proposal (Unsolicited Proposal) • Public Contract Duration - 5 to 50 years Calculation of Value and Selection Criteria • Selection criteria prescribed by the law governing public procurement, except for provisions regulating the advantage of national bidders over foreign ones • Price - the net present value relevant to total costs over the contract period without the value-added tax • Assessed value of the public contract - the calculation is based on the total value, as assessed by the public body, taking into account the assessed total value, including possible options and possible renewal of the public contract - The assessed value of concession for public services without the right to exploitation of the service and concession for public works shall be calculated according to the relevant provisions of the law regulating public procurement Criteria for the Selection of the Best Bid when Awarding Concessions 1) Economically Most Favorable Bid - criteria relevant to the subject of the concession (quality, the level of fees, the technical solution, the aesthetic, functional and environmental characteristics, cost of the service provided to end beneficiaries, operational costs, costeffectiveness, servicing after taking-over and technical support, dates of delivery of delivery period or the period for the completion of works) - The tender documents and in the public invitation notice - all the selection criteria in respect to the relevant significance attached to such criteria 2) Highest Offered Concession Fee Public Invitation Notice - in the Serbian language and in a foreign language commonly used in international trade - Official Gazette of the Republic of Serbia - daily paper widely distributed in the whole territory of the Republic of Serbia - web page of the public body - Public procurement portal - can be published on one international newspaper and electronically on the internet pages of the Tenders Electronic Daily, the Internet publication attached to the Official Journal of the European Union (mandatory for projects whose value exceeds five million euros) Deadlines for the Receipt of Bids and Applications • Adequate deadline - especially take into consideration the complexity of the public contract and the time needed to compile the bid • The deadlines not shorter than: 1) 52 days of the date of publication of the public notice - open procedure 2) 37 days of the date of sending the public invitation / 40 days of the date of publication of the public notice - procedures conducted by a holder of exclusive rights, if performing works, the restricted procedure, the negotiating procedure with the publication of public notice and the competitive dialogue 3) 60 days of the date of publication of the public notice - concession granting procedure (regulated by the Law on Public-Private Partnership and Concessions) Minimum Thresholds • This law applies to all public contracts which are not exempt and whose assessed value not including value-added tax (VAT) is equal to or exceeds the minimum thresholds below which public bodies are not obliged to apply the law which regulates public procurement and which are determined in the law regulating the annual budget of the Republic of Serbia (≈3.500 €) Protection of Rights • • In accordance with the law regulating public procurement Any person interested in participating or participating in the public contract award procedure may lodge a request to the Republic Commission for the Protection of Rights in Public Procurement Procedures against the decisions of the public body implementing the procedure which may be refuted separately and which are illegal in the opinion of such person Supervision over Implementation of Public Contracts • The ministry responsible for finance, authorities of autonomous provinces or local self-government units responsible for finance: - review and analysis of reports on the implementation of public contracts (regular/on request), submitted by public authorities and private partners - direct examination of current situation - inspection of documents on the implementation of public contracts - examination of results of analysis carried out by an independent expert/auditor • Inspection and competent tax services and authorities – within their regular mandate; initiation of administrative supervision and inspection in accordance with the provisions of the law regulating the operations of public administration authorities; any other preventative activities Dispute Resolution - Arbitration • national or international arbitration - if the parties to the contract agree (Arbitration with the seat abroad cannot be agreed, when as private partner occur domestic legal entity or physical person, or the consortia consisted exclusively of domestic legal or physical persons) • If the parties to the contract have not agreed to resolve disputes by arbitration, the court of exclusive jurisdiction shall be courts of the Republic of Serbia INSTITUTIONAL FRAMEWORK - The PPP Commission • Established by the Government (at the proposal of Prime-Minister, the ministry in charge of economy and regional development, the ministry in charge of finance; the ministry in charge of infrastructure, the ministry in charge of mining, the ministry in charge of utility activities, the ministry in charge of environmental protection, the autonomous province and the City of Belgrade) • 9 members (citizen of the Republic of Serbia, with qualification of at least a university diploma, and an expertise in the field of public-private partnership, public procurement, and concessions, and/or the EU law) • Operationally independent in its work Resources and Conditions for Work of the Commission • The resources for the work of the Commission - provided in the budget of the Republic of Serbia • The premises and other conditions for work of the Commission - provided by the Ministry Appointment and Termination of Office of Members of the Commission • Five year term, with a possibility of reappointment The Competences of the Commission The Commission: 1) assists in the preparation of proposals for PPP in order to facilitate the development of public-private partnerships and public contracts 2) provides information and consultation 3) gives its opinion in the procedure of approval of proposed PPP projects without elements of concession / proposed concession document 4) identifies and facilitates the implementation of the international best practice for the Republic of Serbia 5) develops methodological materials 6) cooperates with other public administration institutions and with nongovernment organizations 7) at the request of the public body, or of the concession granting authority, provides recommendations on projects The Competences of the Commission 8) submits to the Government its annual report on projects implemented in accordance with this law in the Republic of Serbia and publishes at its web-pages the annual report after it is endorsed by the Government, as well as other data and information which it deems are relevant for the implementation of this law 9) cooperates with the authorities of the Republic of Serbia in charge of budget inspection, the State Audit Institution, the services of the autonomous province and of the units of local self-government in charge of budget inspection and with other national and international authorities, organizations and institutions in the performance of tasks from within its competences 10) performs also other tasks in accordance with this law IMPLEMENTATION (past practice) • Commission on PPP and Concessions: - 12 project proposals have been considered - Positive opinion has been given for a total of 8 project/concession enactment proposals (projects at the level of local self-government, of less value and importance) • Republic Commission for the Protection of Rights in Public Procurement Procedures: - 1 procedure for the protection of rights in connection with a public procurement procedure with the aim to select a private partner - 1 procedure for the protection of rights in connection with a public procurement procedure for consultation services for concession FORTHCOMING ACTIVITIES • Additional analysis of the currently applicable regulations with the aim to define the level of harmonization with the new EU directive in the field of concessions and review of actual timeframes and activities which must be taken to make necessary adjustments, i.e. to carry out harmonization • Analysis of the functioning of the introduced system of competences and looking into a possible need for their revision • Analysis of “sectoral” laws with the aim to identify all procedures which might be regulated by special regulations and which constitute PPP or concessions by their legal nature within the meaning of the Law on PPP and Concessions and it would be necessary to harmonize them, i.e. to ensure full and equal implementation of the provisions of this Law also in these procedures (e.g. by referring to its direct implementation) FORTHCOMING ACTIVITIES • Activities on the development of a subportal within the Public Procurement Portal to ensure implementation of the provisions of the law which regulate the Registry of Public Contracts with the aim to ensure full implementation of the transparency principle in all stages • Provide continual education and training of technical staff, both in the public authorities authorized to carry out the procedures and to conclude this type of contracts and in the public authorities competent for approval of projects/concession enactments, for the supervision over the implementation of concluded contracts and for the protection of rights in procedures REPUBLIC OF SERBIA The Negotiating Group for Chapter 5 – Public Procurement THANK YOU FOR YOUR ATTENTION