Respuesta a las alegaciones de las partes

Public procurement procedures are procedures which contracting authority, that has to act according to the Public Procurement Act, is committed to apply before concluding a public procurement contract. According to the Act on PPPs, a public body is any public body which is the contracting authority within the meaning of the legislation governing public procurement. Therefore, contracting authorities within the meaning of the Public Procurement Act are defined in Art. 3 (contracting authorities) and Art. 4 (contracting entities operating in the water, energy, transport and postal services sectors). The list of the entities obliged to apply Public Procurement Act is determined with the Regulation on the List of Entities Bound by the Public Procurement Act.

The Public Procurement Act stipulates five different public procurement procedures: the open procedure, the restricted procedure, the negotiated procedure (with or without prior publication of the contract notice), and the competitive dialogue and design contract.

Every public procurement procedure starts formally with the adoption of a decision on the commencement of the public procurement procedure, which is a mandatory precondition for the commencement of any public procurement procedure.

After the adoption of the decision on the commencement of the public procurement procedure in which it is stated that one of the public procurement procedures is used, the contracting authority issues an invitation to tender on the standard forms used for the purpose in the Electronic Public Procurement Classifieds in the Official Gazette (EOJN) together with the appropriate standard forms (as the estimated procurement value for the PPP projects is greater than HRK 70.000,00). This is how the economic operators on the market are informed that the contracting authority intends to award a public procurement contract.

4.3. Public Procurement Procedures

Public procurement procedures are procedures which contracting authority, that has to act according to the Public Procurement Act, is committed to apply before concluding a public procurement contract. According to the Act on PPPs, a public body is any public body which is the contracting authority within the meaning of the legislation governing public procurement. Therefore, contracting authorities within the meaning of the Public Procurement Act are defined in Art. 3 (contracting authorities) and Art. 4 (contracting entities operating in the water, energy, transport and postal services sectors). The list of the entities obliged to apply Public Procurement Act is determined with the Regulation on the List of Entities Bound by the Public Procurement Act.

The Public Procurement Act stipulates five different public procurement procedures: the open procedure, the restricted procedure, the negotiated procedure (with or without prior publication of the contract notice), and the competitive dialogue and design contract.

Every public procurement procedure starts formally with the adoption of a decision on the commencement of the public procurement procedure, which is a mandatory precondition for the commencement of any public procurement procedure.

After the adoption of the decision on the commencement of the public procurement procedure in which it is stated that one of the public procurement procedures is used, the contracting authority issues an invitation to tender on the standard forms used for the purpose in the Electronic Public Procurement Classifieds in the Official Gazette (EOJN) together with the appropriate standard forms (as the estimated procurement value for the PPP projects is greater than HRK 70.000,00). This is how the economic operators on the market are informed that the contracting authority intends to award a public procurement contract.

4.3.1. Open Public Procurement Procedure

The contracting authority may initiate an open public procurement procedure when a plan for the funds for procurement is in place, along with exceptions stipulated in Art. 13. of the Public Procurement Act and the public procurement procedure shall begin upon the adoption of a decision on the commencement of the public procurement procedure which points out that the open public procurement procedure shall be applied. The next step is to publish the invitation to tender in the EOJN. From that moment, when the contract notice on the public procurement for the open procedure is published, the interested economic operators can apply for the tendering documentation. The interested economic operators submit their bids within the deadline set for the submission of bids, to a certain address stipulated by the contracting authority in the invitation and in the tendering documentation. In open procedure the tenders are to be opened in a formal public opening of tenders, which shall be documented in the form of minutes, which is immediately submitted for checking, as well as the content verification and signature to the authorized representatives of the tenderer.

The bids are opened, examined and evaluated according to the conditions and terms set in the tender documentation and on the results of the examination and evaluation of the tender shall be drawn up Minutes on examination and evaluation of the tenders. After exterminating and evaluating, the bids are ranked according to the selection criteria. Negotiations between the contracting authority and the tenderer are not allowed in the open procedure. Only Bids which do not contain any of the reasons for exclusion stipulated in Art. 84 of the Public Procurement Act shall be considered as acceptable. In the minutes concerning the examination and evaluation of bids, the contracting authorities must provide an analytical presentation of the requested and submitted proof of ability, the acceptability of bids and the reasons for rejecting bids under Article 84 of the Public Procurement Act.

The contracting authority shall adopt the contract award decision according to the selection criteria among the bids which remain after the rejection. If after rejection

4.3.1. Open Public Procurement Procedure

The contracting authority may initiate an open public procurement procedure when a plan for the funds for procurement is in place, along with exceptions stipulated in Art. 13. of the Public Procurement Act and the public procurement procedure shall begin upon the adoption of a decision on the commencement of the public procurement procedure which points out that the open public procurement procedure shall be applied. The next step is to publish the invitation to tender in the EOJN. From that moment, when the contract notice on the public procurement for the open procedure is published, the interested economic operators can apply for the tendering documentation. The interested economic operators submit their bids within the deadline set for the submission of bids, to a certain address stipulated by the contracting authority in the invitation and in the tendering documentation. In open procedure the tenders are to be opened in a formal public opening of tenders, which shall be documented in the form of minutes, which is immediately submitted for checking, as well as the content verification and signature to the authorized representatives of the tenderer.

The bids are opened, examined and evaluated according to the conditions and terms set in the tender documentation and on the results of the examination and evaluation of the tender shall be drawn up Minutes on examination and evaluation of the tenders. After exterminating and evaluating, the bids are ranked according to the selection criteria. Negotiations between the contracting authority and the tenderer are not allowed in the open procedure. Only Bids which do not contain any of the reasons for exclusion stipulated in Art. 84 of the Public Procurement Act shall be considered as acceptable. In the minutes concerning the examination and evaluation of bids, the contracting authorities must provide an analytical presentation of the requested and submitted proof of ability, the acceptability of bids and the reasons for rejecting bids under Article 84 of the Public Procurement Act.

The contracting authority shall adopt the contract award decision according to the selection criteria among the bids which remain after the rejection. If after rejection

select that bid. The same procedure shall be applied in the case that only one bid is submitted to tender, which is at the same time acceptable.

The time limit for the adoption of the contract award decision shall be calculated from the date of expiry of the time limit for the receipt of tender. The contracting authority shall without any delay, send the contract award decision, together with a copy of the minutes of the examination and evaluation of the bits, to each bidder, by registered letter with confirmation of delivery or another traceable means of communication. After the expiry of the standstill phases, and if the process of legal protection is not initiated, that is with the notification of the State Commission for the supervision of the public procurement procedure decision pointing out that the appeal is rejected, the contract award decision comes into force and results into a contract. The Public Contract, shall be harmonized with the selected bid and terms determined in the tendering documents.

Figure 13 Open procedure

The contracting authority shall publish a notice of awarded contract by applying standard forms in the EOJN at least within 48 days after the conclusion of the

select that bid. The same procedure shall be applied in the case that only one bid is submitted to tender, which is at the same time acceptable.

The time limit for the adoption of the contract award decision shall be calculated from the date of expiry of the time limit for the receipt of tender. The contracting authority shall without any delay, send the contract award decision, together with a copy of the minutes of the examination and evaluation of the bits, to each bidder, by registered letter with confirmation of delivery or another traceable means of communication. After the expiry of the standstill phases, and if the process of legal protection is not initiated, that is with the notification of the State Commission for the supervision of the public procurement procedure decision pointing out that the appeal is rejected, the contract award decision comes into force and results into a contract. The Public Contract, shall be harmonized with the selected bid and terms determined in the tendering documents.

Figure 13 Open procedure

The contracting authority shall publish a notice of awarded contract by applying standard forms in the EOJN at least within 48 days after the conclusion of the

contract. After this last step is finalized, the execution of the contract begins, which by itself is not regulated in the public procurement legislation, but is to be incorporated in the scope of application of the Civil Obligation Act.

Should the contracting authority not be able to adopt the contract award decision, the entire procedure shall be cancelled by adopting the cancelation decision. The cancellation decision relating to Public Procurement Procedure shall become final after the expiry of the standstill period of 15 days from the date on which the cancellation decision was sent to the bidders. The standstill period for the procurement procedures of lesser value last for 5 days from the date on which the cancellation decision was sent to bidders. Before the expiration of the standstill period no new Public Procurement Procedure shall be initiated for the same item of procurement, except when the procurement was caused by force majeure.

4.3.2. Restricted Public Procurement Procedure

According to the Public Procurement Act, the contracting authority may freely decide which public procurement procedure to apply – the open or the restricted public procurement procedure.

The restricted public procurement procedure is implemented in two phases: in the first phase, after adopting decision on the commencement of a public procurement procedure, the contracting authority publishes the contract notice within the restricted public procurement procedure and examines the suitability of the interested economic operators. In the second phase the tenderers/bidders who meet the requirements set to submit their tenders are invited.

1st _{Phase - publishing of the invitation to tender and determining of the}

suitability of the bidder on the basis of his request to participate

The contracting authority publishes the invitation to tender with the restricted public procurement procedure in the EOJN. The mandatory content of the contract notice is the proof of suitability of the economic operators, which they have to submit.

contract. After this last step is finalized, the execution of the contract begins, which by itself is not regulated in the public procurement legislation, but is to be incorporated in the scope of application of the Civil Obligation Act.

Should the contracting authority not be able to adopt the contract award decision, the entire procedure shall be cancelled by adopting the cancelation decision. The cancellation decision relating to Public Procurement Procedure shall become final after the expiry of the standstill period of 15 days from the date on which the cancellation decision was sent to the bidders. The standstill period for the procurement procedures of lesser value last for 5 days from the date on which the cancellation decision was sent to bidders. Before the expiration of the standstill period no new Public Procurement Procedure shall be initiated for the same item of procurement, except when the procurement was caused by force majeure.

4.3.2. Restricted Public Procurement Procedure

According to the Public Procurement Act, the contracting authority may freely decide which public procurement procedure to apply – the open or the restricted public procurement procedure.

The restricted public procurement procedure is implemented in two phases: in the first phase, after adopting decision on the commencement of a public procurement procedure, the contracting authority publishes the contract notice within the restricted public procurement procedure and examines the suitability of the interested economic operators. In the second phase the tenderers/bidders who meet the requirements set to submit their tenders are invited.

1st _{Phase - publishing of the invitation to tender and determining of the}

suitability of the bidder on the basis of his request to participate

The contracting authority publishes the invitation to tender with the restricted public procurement procedure in the EOJN. The mandatory content of the contract notice is the proof of suitability of the economic operators, which they have to submit.

The economic operators interested to participate in the public procurement procedure shall submit their request to participate to the contracting authority within the determined deadline. The minimum time limit set by the contracting authority for the receipt of requests to participate for participation is 37 days starting with the day the contract notice was sent, and for public procurement procedures of lesser value (under the amount stipulated by the Regulation on notice and evidence in public procurement procedure) that time limit is 25 days. The time limits listed above can be shortened according to Articles 44 and 45 of the Public Procurement Act.

The contracting authority shall keep minutes on the evaluation of the suitability of bidders. Economic operators who have submitted their requests for participation in the restricted public procurement procedure on time and on the basis of an invitation and who have proven their suitability are entitled to participate in the further procurement procedure. The economic operators who have not proven their suitability, the contracting authority shall deliver the decision on the inadmissibility of their participation.

Figure 14 Restricted procedure

The economic operators interested to participate in the public procurement procedure shall submit their request to participate to the contracting authority within the determined deadline. The minimum time limit set by the contracting authority for the receipt of requests to participate for participation is 37 days starting with the day the contract notice was sent, and for public procurement procedures of lesser value (under the amount stipulated by the Regulation on notice and evidence in public procurement procedure) that time limit is 25 days. The time limits listed above can be shortened according to Articles 44 and 45 of the Public Procurement Act.

The contracting authority shall keep minutes on the evaluation of the suitability of bidders. Economic operators who have submitted their requests for participation in the restricted public procurement procedure on time and on the basis of an invitation and who have proven their suitability are entitled to participate in the further procurement procedure. The economic operators who have not proven their suitability, the contracting authority shall deliver the decision on the inadmissibility of their participation.

If the bidder, who receives after the evaluation of its request for participation the decision on the inadmissibility of its participation, believes that its subjective rights in the public procurement procedure are violated, it is allowed to file an appeal against the decision on its rejection to the State Commission within 10 days from the day of receipt in order to decide on the individual right related to the examination procedure and evaluation of the suitability.

2nd _{Phase - invitation to tender for selected tenderers}

The contracting authority shall simultaneously and in written invite the selected candidates to submit their tenders. Attached to the written invitation shall be the tender documents and any supporting documents or reference that the tender documents are made directly available by electronic means. The deadline for submission in the restricted public procurement procedure is 40 days from the day the invitation to tender has been sent. It is possible to shorten the deadlines according to Art. 43, 44 and 45 of the Public Procurement Act. The bid shall not be changed after the deadline is expired.

During the public opening of bids minutes shall be taken; the minutes shall be checked and signed by all authorized representatives of the bidders and of the contracting authority.

Experts shall examine and evaluate the bids according to the requirements determined in the notice and/or in the tender documentation by the contracting authority. The bids shall be ranked as it is set in the selection criteria. Minutes are to be taken on the examination and evaluation of the bids. After the bids are examined and evaluated the responsible person of the contracting authority adopts the contract award decision or cancellation decision. The contract award decision or cancellation decision, together with the minutes on the examination and evaluation of bid is send to all bidders. Only one acceptable bid is needed to make the award.

The contracting authority shall not sign the public contract before expiry of the standstill period, which shall last for 12 days from the date on which the contract

If the bidder, who receives after the evaluation of its request for participation the decision on the inadmissibility of its participation, believes that its subjective rights in the public procurement procedure are violated, it is allowed to file an appeal against the decision on its rejection to the State Commission within 10 days from the day of receipt in order to decide on the individual right related to the examination procedure