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What is the relevant legislation regulating the award of public contracts?
Public procurement in Macedonia is regulated by the Public Procurement Law (PPL) passed on 12November 2007 (Official Gazette of RM No. 136/2007), as amended and supplemented in 2008, 2009, 2010, 2011, 2013, 2014, 2015, 2016and 2017. The PPL, as a law governing a specific subject matter, governs the terms and procedures for awarding public procurement contracts, the authorisations of the Public Procurement Bureau and the authorisations of the State Appeals Commission. In the absence of any specific provision on issues related to the review procedures in public procurements, the PPL prescribes that the Law on General Administrative Procedure is a subsidiary law.
The supervision and the enforcement of the public procurement system in Macedonia is under the jurisdiction of the Ministry of Finance and the Public Procurement Bureau, as well as the State Appeals Commission as an independent body authorised to rule on the review procedures in public procurements.
Until the adoption of the last amendment of the PPL (Official Gazette of RM No. 165/2017), a special oversight body - the Procurement Council - existed. In specific cases determined in the PPL, it was mandatory for contracting parties to require consent from the Council before issuing an announcement for opening the public procurement procedure and to submit an adequate justification for the legal grounds and the need for the procurement. However, pursuant to the latest amendment of the PPL, all provisions regarding the Procurement Council have been deleted, thus the Procurement Council does not exist anymore and there is no requirement to obtain consent from it.
Is there any sector-specific procurement legislation supplementing the general regime?
The general rules of the PPL do not apply to procurement contracts that are classified as ‘state secrets’ or contracts that require special security measures to be enforced. Also, the state defence authorities may not apply the PPL in any case when it might cause disclosure of any classified information or endanger the primary security interests of the state, especially related to manufacturing and trade of arms, munitions and military assets.
In addition to the exemptions in the field of state defence, the PPL also does not apply to public service contracts that:
- include acquisition or rental of land, buildings or other immovable property or the rights thereon;
- refer to the purchase, development, production or co-production of programme material by radio or TV broadcasters and to the broadcasting time of TV and radio programmes;
- refer to arbitration and conciliation services;
- refer to financial services related to the issue, trading or transfer of securities or other financial instruments, brokerage services and services rendered by the National Bank of Macedonia;
- are notary services;
- are lawyers’ services;
- refer to employment contracts;
- refer to research and development (R&D) services;
- are public contracts for which funds have been provided by international organisations (ie, donors or lenders) or from third countries;
- are public contracts granted for the activities of the army of the Republic of Macedonia; and
- are contracts of goods or works awarded on the basis of an international agreement concluded between the Republic of Macedonia and one or more countries, and which are intended:
- for joint implementation;
- for the use of a construction by the signatory states or services intended for joint implementation; or
- for the use of projects by the signatory; and
- for other states, provided that the international agreement anticipates an appropriate procedure for awarding the public procurement contracts.
In which respect does the relevant legislation supplement the EU procurement directives or the GPA?
Macedonia currently has the status of a candidate state for membership of the European Union (EU). Achieving EU membership is the major goal of Macedonian state politics. Therefore, Macedonia is continuously working on the harmonisation of its national legislation with EU rules. The harmonisation of national legislation on public procurement with EU rules is considered as one of the most powerful instruments for the improvement and development of the Macedonian market.
The European Commission has evaluated the Macedonian PPL as highly consistent with the EU public procurement directives including, but not limited to, Directives 2001/78/EC, 2004/18/EC, 2004/17/EC and 2007/66/EC.
Between 2014and 2018Macedonia will also implement Directives 2009/33/EC and 2009/81/EC.
Are there proposals to change the legislation?
The mission and priority goal of the public procurement system in Macedonia is to continuously follow and harmonise with EU rules on public procurement and the good practice of EU member states, in the field of public procurement by further adoption of EU directives related to public procurement, especially to green procurement, and their implementation in the national procurement system.
Applicability of procurement law
Which, or what kinds of, entities have been ruled not to constitute contracting authorities?
There is no certain definition given within statutory law defining which organisations are not considered to be public authorities.
The PPL explicitly defines the entities that are covered by the provisions of the PPL and that constitute contracting authorities; so any other entity not recognised with the definition given by the PPL does not constitute a contracting authority.
On the other hand, the government of Macedonia has made a decision to set out an indicative list of entities that constitute contracting authorities; any entity that is not included in this list does not come under the PPL.
Are contracts under a certain value excluded from the scope of procurement law? What are these threshold values?
The PPL applies to any contracts the total amount of which exceeds the equivalent of €500in denars in denars (based on the middle exchange rate published by the National Bank of Macedonia) on a monthly basis, excluding value added tax.
As an exemption from this general threshold, the PPL shall not apply for utilities contracts (water supply, energy, transport, postal services and other covered activities) when the estimated value of the contract is below €200,000for public supply of works and services and €4million for the public supply of works.
Amendment of concluded contracts
Does the legislation permit the amendment of a concluded contract without a new procurement procedure?
In cases where the existing contract is amended in a manner that will involve any supplement of the subject of the procurement, the contracting authority is obliged to conduct a new procurement procedure.
The PPL permits amendments to the contract terms, the frequency of payments and dynamics of executing the contract, by signing an annex to the contract without a new procurement procedure only in cases of decreases to the Republic of Macedonia’s state budget. In these cases, the signing of an annex to the contract shall be approved by the government of the Republic of Macedonia, based on the prior opinion of the Ministry of Finance.
Has there been any case law clarifying the application of the legislation in relation to amendments to concluded contracts?
There is no case law that could clarify the application of the legislation in relation to amendments to concluded contracts.
In which circumstances do privatisations require a procurement procedure?
Privatisations are not the subject of regulation in the PPL. Privatisations in Macedonia are governed by the Law on Privatisation on State Shares in Companies and fall under the jurisdiction of the government of Macedonia (ie, the government decides on privatisations). The privatisation procedure must generally be conducted by public announcements for soliciting purchase offers.
In which circumstances does the setting up of a public-private partnership (PPP) require a procurement procedure?
A separate Law on Concessions and Other Types of PPP governs PPPs. A PPP contract refers to services on projecting (designing), financing, contraction and maintenance of infrastructure projects, equipping, and other types of public services that the private partner shall provide to the public partner for certain financial benefit.
The PPL applies to procedures for awarding PPP contracts, except for certain issuances of PPP contracts for which the Law on Concessions and Other Types of PPP provides special rules.
Advertisement and selection
In which publications must regulated procurement contracts be advertised?
The contracting authority shall advertise the notice for the tender procedure to be conducted, in the form of an open procedure, restricted procedure, competitive dialogue, negotiated procedure without prior publication of a contract notice or contest for idea solution, on the Electronic System for Public Procurement (ESPP) and in the Official Gazette of Republic of Macedonia.
The contracting authority mandatorily publishes notifications of concluded contracts (but not the whole contract) on the ESPP. This is a comprehensive online system, for the purpose of enabling greater efficiency and effectiveness in the field of public procurement.
Are there limitations on the ability of contracting authorities to set criteria or other conditions to assess whether an interested party is qualified to participate in a tender procedure?
The general rule of the PPL related to defining criteria for the qualification of interested parties to participate in the tender procedure provides that the contracting authority may not define criteria for qualification that are disproportionately discriminatory, not adequate to or not related to the subject matter of the procurement. Furthermore, the PPL provides mandatory criteria for interested participants such as that the participant shall not be undergoing a bankruptcy or liquidation procedure or that the participant shall have no outstanding taxobligations.
Is it possible to limit the number of bidders that can participate in a tender procedure?
One of the main principles when conducting tender procedures that fall under the PPL is the favouring of a wider pool of bidders that can participate in a tender procedure by imposing a prohibition and penalty provision on state administrations for limiting the number of bidders.
Regaining status following exclusion
How can a bidder that would have to be excluded from a tender procedure because of past irregularities regain the status of a suitable and reliable bidder? Is the concept of ‘self-cleaning’ an established and recognised way of regaining suitability and reliability?
Macedonia’s law does not recognise the principle of ‘self-cleaning’.
A bidder that has a negative reference owing to irregularities in public procurement procedures is excluded from all further contract award procedures for a period of one year from the day of publication of the negative reference. The period of exclusion shall be extended for one additional year for every subsequent negative reference, but will not exceed five years. After expiry of the period of exclusion the bidder shall regain the status of suitable bidder. The Public Procurement Bureau keeps the records of negative references.
However, the contracting authority shall exclude any bidder from the procedure, no matter that the bidder has no registered negative reference for past irregularities, if that bidder at the moment of submission of the bid:
- is in a bankruptcy or liquidation procedure;
- has unpaid due taxes, contributions and other public duties;
- has been convicted of a misdemeanour resulting in prohibition against performing any professional activity or duty (ie, temporary prohibition against performing professional activity);
- has been prohibited from participating in public procurement procedures; or
- presents false information or does not present the information required by the contracting authority.
The procurement procedures
Does the relevant legislation specifically state or restate the fundamental principles for tender procedures: equal treatment, transparency and competition?
The basic principles of public procurement as set out in the PPL are:
- competition between the bidders;
- equal treatment and non-discrimination of the bidders;
- transparency and integrity in the process for awarding contracts; and
- rational and efficient utilisation of funds in public procurement.
Independence and impartiality
Does the relevant legislation or the case law require the contracting authority to be independent and impartial?
The PPL stipulates the impartiality of the contracting authority through various provisions, starting from the general provisions setting forth that the equal treatment and non-discrimination of the bidders is one of the basic principles of public procurement.
In this context the PPL provides that the contracting authority shall not define the technical specifications of the subject matter of the procurement - such as indicating a specific manufacturer, production - a particular process, or trademarks, patents, types or a specific origin which may have the effect of favouring or disqualifying certain economic operators or certain products.
Furthermore, the impartiality of the contracting authority is also covered by the provisions related to preventing conflicts of interest between the contracting authority officers managing the procedure and the bidders participating in the procedure. (See question 17.)
Conflicts of interest
How are conflicts of interest dealt with?
The PPL contains several provisions related to preventing conflicts of interest, provided that:
- persons who have participated in the preparation of the bid documentation cannot participate as bidders or members of a joint group in the contract award procedure;
- persons who have taken part or assist in the evaluation of the bids, as well as the head person at the contracting authority, cannot act as candidates, bidders, subcontractors or members in a group of bidders in the respective contract award procedure. In this case, the request to participate in the bid shall be rejected from the contract award procedure; and
- when executing the public contract, the contractor shall not appoint persons involved in the evaluation of bids submitted in the respective contract award procedure during the period of the validity of the contract. If this occurs, the public contract shall be null and void.
For any other purpose in preventing conflicts of interest the PPL refers to the Law on Prevention of Conflicts of Interest, which shall accordingly apply to the contract award procedures.
Bidder involvement in preparation
How is the involvement of a bidder in the preparation of a tender procedure dealt with?
The PPL explicitly provides that persons who have participated in the preparation of the bid documentation cannot participate as bidders or members of a joint group in the contract award procedure. Such bids shall be rejected from the contract award procedure.
What is the prevailing type of procurement procedure used by contracting authorities?
The most frequent type of procurement procedure practised by the contracting authorities is the procedure with request for collecting bids. According to the last annual report on the procurement system in Macedonia, published by the Public Procurement Bureau, most of the procurement procedures were conducted as procedures with requests for collecting bids.
Separate bids in one procedure
Can related bidders submit separate bids in one procurement procedure?
The PPL law does not contain any explicit provisions referring to the participation of related bidders in one procurement procedure. Generally, related bidders can submit separate bids in one procurement procedure, but no specific requirements are provided within thePPL.
Negotiations with bidders
Is the use of procedures involving negotiations with bidders subject to any special conditions?
The PPL recognises two types of negotiated procedures.
Negotiated procedure with prior publication of a contract notice
A contracting authority applies the negotiated procedure with prior publication of a contract notice in the following cases:
- in exceptional cases, when the nature of the works, products or services, or the risks attached thereto, do not allow a prior overall pricing of the contract;
- for public service contracts, where the service to be purchased is of such a nature that the technical specifications cannot be elaborated with sufficient precision to permit the awarding of the contract by applying rules governing open or restricted procedures; and
- for public works contracts, when the works that will be executed are needed exclusively for the purpose of research, testing or technological development, and only if these are not carried out in order to obtain profit and do not aim at recovering the R&D costs.
Negotiated procedure without prior publication of a contractnotice
The contracting authority shall apply the negotiated procedure without prior publication of a contract notice in the following cases:
- when no bid in an open procedure nor a request to participate in the first phase of a restricted procedure have been submitted;
- when, owing to technical or artistic reasons, or for reasons connected with protection of exclusive rights (eg, patents), the contract may be executed only by a particular economic operator;
- for reasons of extreme urgency;
- when the products involved are manufactured purely for the purpose of research, experimentation, study or development. (This does not apply to goods from mass production that would make a profit or recoup costs for R&D);
- in the case of supply contracts, for additional deliveries from the original supplier which are intended either as a partial replacement or extension of existing supplies;
- for the purchase of supplies under particularly favourable terms, for example from a supplier that is winding up its business activities (liquidation or bankruptcy);
- for public service contracts, when the contract concerned follows a design contest and shall be awarded to the winning candidate or to one of the winning candidates; and
- for additional works or services not included in the original contract, but that have, through unforeseen circumstances, become necessary, provided that the award is made to the economic operator performing such works or services when:
- such additional works or services cannot be technically or economically separated from the original contract without causing major problems to the contracting body; or
- such additional works or services, although they can be separated from the execution of the original contract, are crucial for itscompletion.
If the legislation provides for more than one procedure that permits negotiations with bidders, which one is used more regularly in practice and why?
According to the last annual report on the procurement system in Macedonia, published by the Public Procurement Bureau, in 2016the negotiated procedure with prior publication of a contract notice was used more regularly in practice. There were no negotiated procedures without prior publication of a contract notice used that year.
What are the requirements for the conclusion of a framework agreement?
The contracting authority must conclude the framework agreement by carrying out an open or restricted procedure. The contracting authority may conclude a framework agreement with duration appropriate to the nature of the subject matter of the contract, but it shall not exceed a period of two years; except with the purchase of tests that include control, calibration and supplies for laboratory medical work, in which case the framework agreement may be concluded for a period of up to three years.
Public contracts awarded on the basis of a framework agreement shall be concluded between the contracting authority and the economic operator that is party to the respective framework agreement.
The contracting authority shall stipulate the minimum selection criteria for the candidates or the bidders according to the estimated value of the largest public contract to be awarded on the basis of the respective framework agreement.
May a framework agreement with several suppliers be concluded?
The contracting authority may conclude framework agreements with several economic operators, but no fewer than seven.
The contracting authority may award public contracts on the basis of a framework agreement concluded with more than one economic operator:
- without reopening the competition; or
- by reopening the competition between all economic operators party to the framework agreement.
When the contracting authority awards public contracts by reopening a competition between all economic operators, the tender shall be reopened according to the following procedure:
- for every contract to be awarded, the contracting authorities shall submit a written request to all economic operators party to the framework agreement;
- the contracting authority shall set a sufficient time limit to enable the submission of bids for each contract to be awarded;
- the bids shall be submitted in writing and the contracting authority shall open them within the set time limit; and
- the contracting authority shall award each contract to the economic operator that has submitted the winning bid on the basis of the award criteria set out in the framework agreement.
Changing members of a bidding consortium
Under which conditions may the members of a bidding consortium be changed in the course of a procurement procedure?
The members of a bidding consortium that has already submitted its bid may be changed only before the time limit for the submission of bids expires. Any further changes to bids after the time limit for the submission of bids expires, including changes in the members of the consortium, are not allowed.
If the procurement contract is awarded to a consortium, the option of replacing the awarded consortium with another entity is possible only if the contracting authority provided within the tender documentation that the awarded consortium shall establish a new legal entity which shall enter into the procurement contract with the contractingauthority.
Participation of small and medium-sized enterprises
Are there specific mechanisms to further the participation of small and medium-sized enterprises in the procurement procedure? Are there any rules on the division of a contract into lots? Are there rules or is there case law limiting the number of lots single bidders can be awarded?
The PPL does not provide any specific mechanisms to directly encourage the participation of small and medium-sized enterprises (SMEs) in the procurement procedure. The participation of SMEs may be facilitated in the procedures where the contracting authority, at its own discretion, has decided to divide the complex subject matter of the procurement into several lots, so the smaller entity may submit a bid only for a single lot according its business capacities.
There are no special rules on the manner of the division of the contract into lots; the contracting authority may not specify the separate lots in a manner that will limit the competition or favour only one economic operator.
Each economic operator may submit bids for each and all lots and there is no limitation on the number of lots that can be awarded to one economic operator.
What are the requirements for the admissibility of variant bids?
The contracting authority may allow the bidders to submit variant bids only when the contract award criterion is the most economically advantageous bid.
The contract notice must contain an indication whether variant bids are allowed. If such an indication is missing, variant bids shall not be considered.
If variant bids are allowed the contracting authority shall specify the minimum mandatory requirements in the technical specifications that shall be met by these bidders, as well as all other specific requirements for their submission.
Must a contracting authority take variant bids into account?
If a contracting authority allows the submission of variant bids it shall consider and evaluate all alternative bids that meet the minimum requirements referred to in the technical specifications.
The contracting authority may not reject a variant bid which is economically the most advantageous, even if the variant bid will cause a public supply contract that was to be awarded to be transformed into a public service contract, or vice versa.
Changes to tender specifications
What are the consequences if bidders change the tender specifications or submit their own standard terms of business?
The bidders shall prepare and submit their bids in compliance with the requirements and specifications provided by the contracting authority in the tender documentation, even in the forms provided by the contracting authority. Bids that do not comply with the requirements, criteria, formalities and other terms and conditions specified within the tender documentation may be disqualified as non-acceptable bids and shall not be evaluated.
What are the award criteria provided for in the relevant legislation?
The contracting authority shall be obliged to specify in the contract notice the contract award criteria, which once established shall not be changed during the contract award procedure. A contract award criterion is the lowest price. Only in special cases, where the subject of the procurement is intellectual or consultancy services, may the contract award criterion be the economically most advantageous bid.
Abnormally low bids
What constitutes an ‘abnormally low’ bid?
There is no explicit definition of an ‘abnormally low’ bid. The abnormally low bid shall be considered the bid that has an unusually low price for the subject matter of the contract compared to the estimated value of the supplies, works or services to be provided.
What is the required process for dealing with abnormally low bids?
When a bid has a price that appears to be unusually low compared with the estimated value of the supplies or the works or services to be provided, the contracting authority shall request in writing, and before taking a decision regarding the rejection of the bid the economic operator, provide details of the bid which it considers relevant, and it shall check the evidence supplied in order to justify the price in the bid.
The contracting authority shall take into account the evidence the economic operator has submitted, especially that referring to:
- the economic basis of the price-setting reflecting the production process or the provided services;
- the technical solutions chosen or any other exceptionally favourable conditions available to the economic operator when executing the works, delivering the supplies or providing the services;
- the originality of the supplies, services or works bid for;
- the compliance with the regulations regarding safety at work and the working conditions applicable for the execution of works, the provision of services or the delivery of supplies; and
- the possibility for the economic operator to avail itself of state aid.
Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?
Each economic operator that has a legal interest in the public procurement procedure, and which has suffered or could suffer damage by an alleged infringement of the provisions of the PPL, may initiate an appeals procedure against the decisions, actions and failures to undertake actions by the contracting authority during the public procurement procedure.
The appeal procedure (review procedure) is ruled by the State Commission for Appeals in Public Procurements.
The decisions of the Appeals Commission may be challenged in judicial procedure before the Administrative Court competent for resolving administrative disputes.
The decision of the Administrative Court may also be challenged in certain appeals before the Higher Administrative Court as regulated by the Law on Administrative Disputes.
If more than one authority may rule on a review application, do these authorities have the power to grant different remedies?
According to the PPL only one authority may rule on a review application and that is the State Commission for Appeals in PublicProcurements.
Timeframe and admissibility requirements
How long do administrative or judicial proceedings for the review of procurement decisions generally take?
The Appeals Commission is obliged to give its decision on the appeal within 15days of receiving the whole body of documentation related to the public procurement procedure against which the appeal is submitted. The documentation for the public procurement procedure shall be delivered to the commission by the contracting authority within five days of submission of the appeal. In practice the decision-making process usually is completed 15to 20days after submitting the appeal.
Judicial proceedings before the Administrative Court (administrative court procedures) concerning public procurement procedures, although considered as urgent, may last longer than six months after initiating the procedure.
What are the admissibility requirements?
The PPL provides mandatory information that has to be included in the appeal in order for the appeal to be accepted and reviewed by the Appeals Commission. Such information includes:
- the appellant’s name, address or residence and seat;
- information for the representative or legal proxy;
- name and address of the contracting authority;
- number and date of the contract award procedure and information on the contract notice;
- number and date of the contracting authority’s decision;
- other information about actions or failures to undertake actions by the contracting authority;
- description of the actual situation;
- description of the irregularities and infringements of the PPL;
- proposal for evidence;
- appeals request or request for compensation of the procedural costs; and
- signature and seal of the appellant.
The appellant shall also be obliged to provide evidence that it has paid the appeals tax.
Even if all the formalities stated above are complied with, the appeal will not be accepted if it is submitted out of time.
What are the time limits in which applications for review of a procurement decision must be made?
An appeal against the decisions, actions and failures to undertake actions by the contracting authority during a public procurement procedure must be submitted within eight days, or three days in simplified competitive procedures, as of the day of:
- the announcement of the contract notice, with respect to the infringements regarding the information, actions or failures under the contract notice;
- the opening of bids, with respect to the infringements regarding the actions or failures related to the tender documentation and the public opening of tenders;
- the receipt of the formal decision with respect to the infringements regarding the evaluation of bids; or
- the acknowledging of the illegal implementation of the contract award procedure, within one year after the day of the contract award procedure completing.
An appeal shall be also filed within three days of the receipt of the notification of a concluded contract based on a framework agreement.
An appellant who is not satisfied with the decision of the Appeals Commission may challenge it by initiating a judicial procedure before the Administrative Court (administrative court dispute) within 30days of receipt of the commission’s decision.
Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?
The application of an appeal shall automatically suspend the signing of the public contract and its execution until the decision on the appeal by the Appeals Commission becomes final.
Notwithstanding this, the Appeals Commission may approve the continuation of the public procurement procedure upon request of the contracting authority. The Appeals Commission must decide within three days of the submitted request. If the public contract is signed contrary to these terms, it shall be deemed void. The request for continuation of the procedure for awarding a public procurement contract may be granted for reasons that may incur damages if the procedure is not conducted, and which are disproportional to its value.
Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
According to the last annual report on the procurement system in Macedonia, published by the Public Procurement Bureau, in 2016a total of 21applications for the lifting the automatic suspension were submitted. Sixteen out of the 21were rejected and five were dismissed, therefore none were granted.
Notification of unsuccessful bidders
Must unsuccessful bidders be notified before the contract with the successful bidder is concluded and, if so, when?
The contracting authority shall notify all bidders, in writing, of the selected bidder a public contract has been awarded to. The notice shall be sent within three days from the day the respective decision was made, and a copy of the decision must be attached to the notice.
The contracting authority is obliged in the notice to inform the rejected bidders of the reasons why their bid was considered unacceptable, and to inform bidders who submitted an acceptable tender that was not selected as winner as to the reasons for selecting the winningbidder.
Access to procurement file
Is access to the procurement file granted to an applicant?
The right to access the entire procurement file during the public procurement procedure is not explicitly provided by the law.
The PPL explicitly provides only that an applicant who has submitted an appeal against the contracting authority’s decision for awarding the public contract shall have the right to review all the documents in the appeals procedure, except those sections of the tender and the documents containing confidential information stipulated by law.
Is it customary for disadvantaged bidders to file review applications?
Generally, disadvantaged bidders in Macedonian public procurement procedures frequently take remedial action.
In the past, remedial actions were even more frequent since no fees were charged for appeal applications. After the adoption of the current law and the establishment of fees for appeal applications, fewer disadvantaged bidders have decided to appeal.
According to the annual reports on the procurement system in Macedonia, published by the Public Procurement Bureau, in 2010the relevant authority dealt with approximately 900review applications, in 2011with approximately 700applications, in 2012with approximately 650, in 2013with approximately 550, in 2014with approximately 600, in 2015with 626,and in 2016with approximately 623review applications.
Violations of procurement law
If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?
If a violation of procurement law is established, the disadvantaged bidders are entitled to claim damages in certain civil court procedures. The bidder claiming damage shall prove that, in the absence of an established violation, it would have been awarded the contract and that its bid is the most favourable. The damages claimed usually are related to the lost profit (contract price minus the costs of implementing thecontract).
May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?
Theoretically this is possible, but in practice it is not enforceable since the signing and execution of the public contract is suspended by force of law only until the Appeals Commission decides upon the submittedappeal.
Usually, the time required for enforcement of all possible remedies by the unsatisfied applicant, namely the appellant, and obtaining a definitive court decision confirming that the conclusion of the contract violated the procurement law, exceeds the time required for enforcement and fulfilment of the concluded contract itself, thus the termination or cancellation of the contract after it has been fulfilled is not possible. The only option that the dissatisfied applicant then has is to ask for compensatory damages.
Is legal protection available to parties interested in the contract in case of an award without any procurement procedure?
Contracting authorities are not allowed to enter into procurement contracts without conducting the procurement procedure, in accordance with the provisions of the PPL, thus all contracts concluded contrary to the provisions of the PPL are be deemed void. Therefore, each interested party may ask for a legal remedy, namely cancellation of the contracts in a civil court procedure, or may bring criminal charges against the contracting authority representatives for breaching or abusing their official authorisations.
What are the typical costs of making an application for the review of a procurement decision?
In the procedure before the State Commission, the appellant, in addition to the administrative fee, shall pay a fee, in Macedonian denars, for conducting the procedure, which depends on the value of the tender, as follows:
- less than €20,000, a fee equivalent to €100in denars;
- €20,000to €100,000, a fee of €200;
- €100,000to €200,000, a fee of €300; or
- greater than €200,000, a fee of €400.
Where there is no tender, the amount of the fee for conducting the procedure shall be calculated on the basis of the estimated value of the public procurement contract, and the State Commission shall inform the appellant of the fee amount payable and the deadline by which the appellant should submit proof of payment.