REGULATION ON MANDATORY ELEMENTS OF TENDER DOCUMENTS IN PUBLIC PROCUREMENT PROCEDURES. The Scope of Governing. Article 1

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1 Pursuant to Article 30, Paragraph 10, of the Law on Public Procurement ( Official Gazette of the RS, No. 116/08), Minister of Finance hereby issues the following: REGULATION ON MANDATORY ELEMENTS OF TENDER DOCUMENTS IN PUBLIC PROCUREMENT PROCEDURES The Scope of Governing Article 1 This Regulation shall set forth in detail the mandatory elements of tender documents prepared in public procurement procedure (hereinafter: tender documents). Element of tender documents Article 2 Tender documents shall comprise: 1) Invitation to bid; 2) Instruction to bidders on how to compile bids; 3) Bid form; 4) Form for evaluating the fulfillment of requirements under Article 44 of the Law of Public Procurement (hereinafter: the Law) and instruction on how to prove fulfillment of these requirements; 5) Contract template (except for the negotiating procedure and for the cases of procuring credit as financial service when tender document includes procuring entity s credit application pursuant to which the bidders submit their contract template); 6) Type, technical characteristics (specifications), quality, quantity and description of goods, works, or services, the modalities of oversight and of securing quality assurance, deadline for delivery, place for performing service or delivery of goods, possible additional services, etc. (except the case of procuring credit as financial service); 7) Technical documentation and blueprints, or documentation on procuring entity s credit standing in instances of public procurement of credit as financial service; 8) Form for price structure, with instruction how to fill it in. Tender documents for the first phase of the restrictive procedure and the qualification procedure shall comprise: 1) Call to submit application; 2) Instruction for bidders on how to draft application; 3) Application form; 4) Form for acknowledging qualifications and instruction on how to prove qualification of the applicants. Other integral elements of tender documents shall be written amendments thereof, as well as additional information and clarifications in writing related with preparing the bid. 1

2 Procuring entity may specify in tender documents the type of the means of financial securing by which bidders are to secure honoring their commitments in public procurement procedure, as well as observing their contractual obligations, or for refund of advance payments (various types of pledging securities or other moveable items, mortgage, promissory notes, warranty of another legal entity having adequate solvency, bank guaranty, insurance policy, etc.). Tender documents may also contain other elements which, with respect to the public procurement subject matter, are necessary to prepare bid or application. Procuring entity shall mark each page of the tender documents by serial numbers and shall note the total number of tender documents pages. Information included in tender documents must be identical to information contained in the public call. Invitation to bid Article 3 Invitation to bid shall contain: 1) Information about procuring entity; 2) Information about public procurement procedure type and about application of other laws, international agreements and accords, where their application is necessary in given procedure; 3) Information about subject of public procurement referred to by the tender documents, which will be specified in greater detail within technical specifications; 4) Notification that bids are to be prepared and submitted in compliance with tender documents and public call; 5) Information on how and where to submit bid, and the last day, e.g., date and hour for bid submission; 6) Notification about place, date and hour for opening bids, and about time and way to submit letter of authorization for bidder s authorized proxy to attend the opening of bids or the negotiation procedure; 7) Notification about the deadline within which the procuring entity will decide on selection of the most advantageous bid, or decision on acknowledging the qualification. Provisions of Paragraph 1 of this Article shall apply to invitation to submit application, mutatis mutandis. Instruction to bidders on how to compile bid Article 4 Instruction to bidders on how to compile bid (hereinafter: the Instruction) shall include the following information about procuring entity s request concerning the contents of the bid, and conditions under which the public procurement procedure is to be conducted: 1) Information on language of the bid; where bids are allowed to also be submitted in a foreign language, partially or completely, there need to be clear statement regarding that particular foreign language and specific part of the bid which can be submitted in foreign language; 2

3 2) Information on mandatory contents of the bid; 3) Defining the special requirements, if applicable, on how bid must be compiled and especially on how the forms attached to tender documents should be filled in, and on particulars that must be included therein, and on details who should fill in, sign, and stamp information and forms where the bidder is a citizen group; 4) Notification about option for bidder to submit bid for one or several lots and instruction on how bid must be submitted where the subject of given public procurement is articulated in several lots, noting that bidders should state in the bid whether the bid covers the entire procurement or just certain lots, so to facilitate evaluation for each lot separately; 5) Notification whether it is prohibited to submit bid with options, that is, to set minimum technical specification that must be observed in bid with options, unless it is prohibited to submit such bids; 6) Notification that bidder who submitted its individual bid cannot at the same time participate in a joint bid or as a sub-contractor; 7) Requirement that bidder should state in the bid whether it intends to entrust the delivery of procurement, partially or completely, to a sub-contractor and, if so, to identify such sub-contractor; 8) Notification about whether, if a joint bid is selected as the most advantageous bid, the procuring entity would require from the consortium of bidders to submit the legal act by which they commit to joint delivery and by which they specify each bidder s liability for performance of the contract; 9) Requirements concerning required terms and conditions for payment, warranty period, and other possible circumstances that determine suitability of bid; 10) Currency and how it has to be stated and expressed in bid; 11) Information on type, contents, modality for submission, amount and terms of financial securing, where the procuring entity so requests; 12) Notification about modality for designating confidential data within the bid as such, or notification that price and other data in the bid relevant for applying elements of the criterion and for ranking bids will not be treated as confidential, pursuant to Article 12 of the Law; 13) Notification that bidder may request in writing additional information or clarifications concerning the compiling of bid, noting that seeking additional information or clarifications by telephone is not allowed; 14) Bid validity period, that cannot be shorter than 60 days since opening the bids; 15) Notification about how to seek additional clarifications from bidders after opening the bids and how to perform oversight of bidder or its sub-contractor; 16) Period of time within which the bidder of the most advantageous bid has to conclude the contract; 17) Type of other relevant evidence of bidder having duly performed commitments in previously concluded contracts of public procurement; 18) Contract elements liable to be negotiated and mode of negotiation, in cases of negotiated procedure; 19) Type of criterion for selection of the most advantageous bid, all elements of criteria pursuant to which will be selected the most advantageous bid which have to be described and expressed in value, as well as methodology for awarding weighted points for each element of criteria, so to facilitate an objective posterior control of bid evaluation; 3

4 20) Elements of criteria pursuant to which the procuring entity will select the most advantageous bid, in a situation where two or more bids have equal numbers of weighted points; 21) Notification about how and when to file request for the protection of bidder s rights, with number of bank account on which the complainant has to pay fee set forth by the law together with submitting the above request; 22) Notification that the contract will be concluded following the expiry of deadline for lodging request for the protection of bidder s rights under Article 107 of the Law. This Instruction may also contain reasons why a candidate may be excluded from the candidates list. Provisions of Paragraph 1, Item 1), 2), 3), 4), 6), 7), 12), 13), 15), 17), 21), and 22) of this Article shall also apply to the Instruction to applicants on how to compile application, mutatis mutandis. Bid form Article 5 The form is prepared so that, once filled in by bidder, it contains: 1) General information about bidder (name, seat, TIN, name of contact person, etc.); 2) Information whether the bid is submitted as an individual bid, or as a joint bid, or as a bid with sub-contractor; 3) Bid validity period, expressed in number of days since bid opening; 4) Other information which procuring entity deems relevant for concluding contract (comprising at least the price and possible discounts where the subject of public procurement is formulated in several lots). Bidder has to fill in the bid form, sign and stamp it, thus confirming veracity of information contained therein. Provisions under Paragraph 1, Items 1) and 2), and under Paragraph 2 of this Article shall also apply to the application form, mutatis mutandis. Form for evaluation of fulfillment of requirements under Article 44 of the Law and Instruction how to evidence fulfillment of these requirements Article 6 Procuring entity shall determine in tender documents the requirements that bidder has to fulfill to be eligible for participating in public procurement procedure and all evidence to prove such fulfillment. Procuring entity shall determine in tender documents the following: 1) Conditions for participating in public procurement procedure under Article 44 of the Law, specifying required financial and business standings and sufficient technical and personnel capacities, in line with the public procurement subject matter; 2) Additional conditions for participating in public procurement procedure, if these were established; 3) Conditions that sub-contractor must meet, pursuant to Article 49 of the Law; 4

5 4) Conditions that each sub-contractor from a group of sub-contractors must meet, pursuant to Article 50 of the Law. Instruction on how to evidence fulfillment of requirement under Article 44 of the Law must specify whether to present one or more pieces of evidence set forth by the law for each of predetermined conditions for participating in public procurement procedure, and must identify the body in charge for issuing thereof (with quoting relevant provisions of the laws). Provisions under Paragraphs 2 and 3 of this Article shall also be applied to form for acknowledging qualification and to instruction on how to evidence applicant s qualification. Contract template Article 7 A contract template must contain all essential elements of the contract (subject, price and contractual obligations). Bidder has to fill in the contract template, and sign and stamp it, thus confirming acceptance of the contract template s contents. In case of a joint bid, or bid with sub-contractor(s) participation, all bidders within the group of bidders and all sub-contractors have to be listed in this contract template, respectively. The contents of the concluded contract must not vary from the contents of the contract template. Technical characteristics (specification) Article 8 Technical characteristics (specifications) have to facilitate such description of goods, works or services that are subjects of public procurement to make them clear and objective and appropriate for procuring entity s needs. Where procuring entity requests from bidders to submit evidence on fulfilling the technical characteristics (specifications), the procuring entity shall precisely specify the type of evidence and indicate which body is in charge for the issuing thereof. Technical documentation and plans Article 9 Technical documentation and plans shall be developed in compliance with the law, and technical regulations and standards pertaining to the subject area of the public procurement subject matter. Form for price structure and instruction how to fill it in Article 10 5

6 The form for price structure has to demonstrate basic elements of price structure, such as: 1) Unit prices and the total price; 2) Total price without VAT and total price with VAT; 3) Separately presented costs that make up the total cost (customs fees, transportation costs, installation, etc). Where the subject of a public procurement is articulated in several lots, the form for price structure has to display price structure for each lot separately. The means of financial security Article 11 Procuring entity may specify in tender documents the type of means of financial security by which the bidders are to secure meeting their obligations in public procurement procedure, their contractual obligations, or the refund of advance payment. Means of financial security may be the following: 1) Bank guarantee; 2) Mortgage; 3) Guarantee of other legal entity with adequate solvency; 4) One of types of pledging securities or other moveable items; 5) Promissory note; 6) Insurance policy, etc. The type of means of financial security in a given public procurement procedure shall be identical for all bidders. Article 12 Financial security shall last for at least as long as lasts the deadline for fulfilling bidder s obligation that is the subject of securing. Procuring entity cannot return to bidder the means of financial security before its expiry, except where the bidder has completely fulfilled the secured obligation. In case of agreed advance payment, procuring entity cannot disburse any amount prior to receiving requested means of financial security for the refund of advance payment. Bank guarantee Article 13 Submitted bank guarantee has to be unconditional and payable on the first call. Submitted bank guarantee cannot include additional conditions for disbursement, shorter deadlines than those set by procuring entity, lesser amount than the one set by procuring entity, or changed territorial jurisdiction for resolving disputes. Where bidder submits a foreign bank guarantee, procuring entity shall that bank s solvency via the National Bank of Serbia. 6

7 Where bidder submits a foreign bank guarantee, that bank has to have at least IBCA rating AA. Article 14 Bank guarantee for bid s seriousness shall be issued in the amount of maximum 10% of the offered price, or of an offered price for each lot for which the bidder bids. Bank guarantee for bid s seriousness shall last at least so long as the bid validity. Article 15 In its instruction to bidders on how to compile their bids, procuring entity may stipulate the obligation to submit bank guarantees by bidder whose bid is evaluated as the most advantageous one, for the following: 1) For refund of advance payment; 2) For quality assurance; 3) For remedying mistakes within the warranty period. Article 16 Bank guarantee for refund of advance repayment that procuring entity may request in cases it foresaw advance payment, shall be issued in the amount of disbursed advance payment and has to cover the whole period until final delivery is done or work performed. The amount of bank guarantee under Paragraph 1 of this Article may be reduced where the guarantee covers partial or successive deliveries of situational works, when allowed, together with determining the modality for reducing the value of the guaranteed amount. Article 17 Bank guarantee for quality assurance shall be issued in the amount of maximum 10% of contract value, and shall take into account period of duration of works. Bidder shall submit a bank guarantee for quality assurance to procuring entity at the same time with the concluding of contract, or within the deadline determined by procuring entity and in any case no later than the first delivery. Where bidder fails to comply with deadline under Paragraph 2 of this Article, contract shall be concluded subject to suspensive condition and shall be effective as of the moment of submitting a bank guarantee. Bank guarantee for quality assurance shall last for at least three days longer after the expiry of deadline for final performance. Where the terms for execution of contractual obligations are amended within the period of contract duration, validity of this bank guarantee shall be extended. Article 18 Procuring entity may require a bank guarantee for remedying mistakes within the warranty period, where the subject of contract also requires proper performance assurance. 7

8 Bidder shall submit a bank guarantee for remedying mistakes within the warranty period to procuring entity at the moment of handing over the subject of contract. By securing bank guarantee for remedying mistakes within the warranty period, procuring entity is ensured if bidder does not remedy a failure which could diminish possibility for using the contract subject within the warranty period. Bank guarantee under Paragraph 1 of this Article shall last three days longer than the established warranty period for proper performance, and shall be issued in the amount of maximum 10% of contract value. Article 19 On the day this Regulation enters into force, there shall cease to be in force Regulation on Mandatory Elements of Tender Documents in Public Procurement Procedures ( Official Gazette of the RS, No. 98/04). Article 20 This Regulation shall come into force on the eighth day counting from the day of its publication in the Official Gazette of the Republic of Serbia. Број: /09 У Београду, 6. јула године МИНИСТАР Др Диана Драгутиновић 8