Transcript Slide 1

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