Public procurement open procedure
Introduction
In this paper open public procurement procedure overview with the specifics to the Eu funded public procurement shall be given. Main focus will be on the open procedure process without going into details.
Public procurement open procedure is most commonly used procedure. It allows any interested economic operator to submit a tender in response to a call for competition.
Before contracting authority sends a call for competition it has following duties:
(i) name members of Expert Committee
(ii) prepare the procurement document; and
(ii) perform preliminary market analysis and consultation.
Preparation
Before public procurement can begin, contracting authority must prepare procurement document. Procurement document means all documents relating to the procurement that define criteria for qualitative selection, award selection criteria, European Single Procurement Document, list of expenses, and other. With it, contracting authority must determine the criteria for qualitative selection, criteria for awarding the contract, list of expenses, means of communication, tender submission and everything else defined by the Procurement document and offer by-law
Once Procurement documents has been prepared, and before open procedure can start, contracting authority must, in certain situations, perform preliminary market consultation Public Procurement Act specified that preliminary market consultation must be done in following situations:
(i) when contracting authority is procuring work, regardless of the type of the procurement,
(ii) when contracting authority is procuring supplies or services in high value procurement.
After the preliminary maket consultations have been concluded, contracting authority will publish a summary report.
Open Procedure
Open procedure begins with sending a call for competition to Electronic public procurement gazette (EOJN). Depending on the threshold, call for competition in high value procurement is sent and published in Tenders Electronic Daily (TED) as well.
Alongside with a call for competition, contracting authority must sent to EOJN Procurement document.
From the moment the call for competition is sent to EOJN up until the due date for tender submission, economic operators can ask for additional information.
Due Date
Due Date for tender submission must be determined by contracting authority when submitting the call for competition. Public Procurement Act defines the minimum amount of days that contracting authority must leave to economic operators for tender submission, without defining the maximum amount. Thus, the due date shall be determined by contracting authority, taking into consideration the complexity of the procurement and the time needed for economic operators to prepare a tender, leaving at least the minimum amount of days determined by the Public Procurement Act.
For high value procurement, the minimum number of days that the economic operators must have to prepare a tender is 35 days from the submission of call for competition, and 20 days in small value procurement.
Additional information and Procurement document amendment
Economic operator may ask for additional information up until the due date for tender submission. If the request is timely, contracting authority must provide an answer to economic operator. Answer must be made available in the same as Procurement document, without naming the economic operator that has send a request.
Contracting authority may amend the Procurement document until the due date for tender submission.
Should request for additional information or amendment of the Procurement document lead to substantial changes to the Procurement document, due date must be prolonged.
Award of Contract
Once the due date for tender submission passed, contracting authority will proceed to opening the tenders. Entire procedure is done electronically, on EOJN. After the tenders have been opened, and Meeting Minutes published on EOJN, Expert Committee will proceed to tender evaluation.
Tender evaluation must be done in accordance with criteria set out in Procurement document. Evaluation order is set in Article 291. Of the Public Procurement Act.
Should some information in the tender not be clear or if it is missing, Expert Committee can request from the economic operator an explanation, pursuant to article 293. of Public Procurement Act.
Those tenders that meet the criteria set out in the Procurement document shall proceed to the next stage, tender ranking.
Tender ranking is sub stage in the Evaluation process where only eligible tenders are ranked based on the criteria for awarding the contract, set out in the Procurement document.
Once the eligible tenders are ranked, contract shall be awarded to the economic operator that submitted the best tender, pursuant to contracting authority decision.
EU funded project and the procurement specifics in EU funded projects
Projects that are funded from ESIF funds are somewhat different. Although the same laws and regulations apply to such procurement, procedure itself is subject to scrutiny from one of the intermediate body in the European structural and investment funds (ESI Funds) management and control system.
There can be several types of scrutiny distinguished:
(i) ex ante control;
(ii) ex post control, and
(iii) on the spot control.
Ex ante control
Ex ante control is done before the procurement procedure, pursuant to section 7 of General Terms and Conditions applied to ESIF funded projects.
Ex ante control is performed by intermediate body in order to minimize the risk, prevent mistakes and ensure principles of public procurement are upheld. Not all procurement planed within the EU project will be subject to ex ante control. Based on the Procurement plan submitted to intermediate body, and based on (i) procurement value, (ii) complexity of the procurement, (ii) procurement procedure selected, (iv) experience, intermediate body will determine which procurement shall be subject to ex ante control.
Intermediate body will control the procurement document, selected procedure, due dates, and other factors and issue an opinion. It is up to the User if the it will accept the suggestions of the intermediate body. Even if it accepts all the suggestions, it doesn’t mean that the intermediate body cannot find mistake(s) in ex post control and issue financial correction.
Ex Post Control
Each procurement that has been done in the EU project is subject to ex post control. EU funds will not be allocated to the User before the ex post control of the procurement is done.
In the Ex post control, intermediate body will evaluate, based on the documentation sent by the User, if the procurement has been done in accordance with the procurement regulation.
Intermediate body will not just evaluate if the procurement procedure has been done in accordance with the Public Procurement regulation, but will also take into consideration its own guidelines. Should it find that some mistakes were made, it has the authority to issue Financial correction.
Financial correction can vary from 5 to 100 % of EU funds, depending on the violation. It is determined based on Financial correction by-law.
To help the Users to comply with Public Procurement regulations, and its guidelines, intermediate bodies publish guides, best practice, brochures… Most known and used guide is the one published by Central Finance and Contracting Agency (CFCA).
On the spot control
Intermediate bodies can also perform on the spot control. It is the type of control where intermediate body the work, service or supply will be the subject of control, not the procedure. Unlike previous control where the intermediate body will, based on the documentation, evaluate if the procedure has been done in accordance with the procurement regulation, with this control the work, service or supplies are subject of the control. The intermediate body will, for example, evaluate if the work acquired by the procurement has been performed, if all the acquired work has been done, it is has been performed to contracted standards, and so on.
Summary
Open procedure is most commonly used public procurement procedure. It allows for any economic operator to submit the tender, and compete for contract. It starts by publishing the call for competition, alongside with Procurement document in EOJN. After public opening of the submitted tenders, Expert Committee will evaluate them in accordance with the criteria set out in the Procurement document. Those that meet the criteria will be ranked and contract warded to the best suitable tender. If the procurement is done as part of the EU funded project, it will be subject to further scrutiny by intermediate body. It can be performed before or after the procurement, and in relation to the procedure or work, service or supply.