Every student of public procurement, when he decides on an appeal against the procurement procedure, must be determined in relation to the costs of the procedure and the return of the appellant's compensation, and he must also write a special legal instruction in case of a possible new appeal from an unsatisfied party, the president of the State Control Commission told "Vijesta" public procurement procedure Zoran Živković.
In the Montenegrin procurement system, however, the practice has become established that the contracting authority, by adopting an appeal with a decision that does not contain an obligation to reimburse costs, can financially exhaust the appellant indefinitely, given that the appellant must pay a fee for each new appeal and procedure, before the State Commission, ranging from one percent of the estimated purchase value up to a maximum of 8.000 euros.
"There is a system of legal protection and every dissatisfied party has the right to appeal, if they are dissatisfied with the decision", stated Živković and notes that compensation is returned only when the decision becomes final and enforceable.
According to the provisions of the old law, the fee for conducting the appeal procedure was returned from the funds of the State Commission, and according to the provisions of the new Law on Public Procurement, which has been in force for two years, the fee to the appellant, if founded, is returned by the contracting authority.
It often happens, as Živković notes, "that the public procurement authorities partially or fully accept the appeal, after which they submit it to the State Commission for the Control of the Public Procurement Procedure without any need."
"If such a complaint, on which the contracting authority has already decided, is forwarded to the State Commission, it is rejected as inadmissible," noted Živković.
When the state commission makes a conclusion that the appeal is inadmissible, the appellant in that legal situation practically loses the right to a refund of the fee he paid for conducting the proceedings before the commission, regardless of the fact that Article 125 of the Law on Public Procurement stipulates that if the appeal is decided in favor applicant, the ordering party is obliged to compensate the applicant for the cost of the paid fee.
The state commission was constituted back in 2012, and it was estimated at that time that four members and the president could solve 600 cases a year.
"However, the influx of cases increased significantly from year to year, so that at the end of 2015 the number of cases increased by 90 percent and amounted to 1.083, and in 2016 there were about 1.300 cases. So we are "overwhelmed" with cases since the capacity of the commission has remained the same, and the volume of work has increased by more than 100 percent (compared to 2012)", stated Živković.
In 2015, the State Commission resolved about 83 percent of cases, and in 2016, the performance of this institution was, as Živković claims, even better, even though they did not complete all statistical data.
This year they will strengthen the Commission
"With the approved budget for 2017, we believe that the number of Commission members should be increased by an additional two, so that we would have six members, of which two councils (three members each) would be formed, which would contribute to promptness and efficiency in the execution of the Commission's legal obligations. Also, we want to strengthen the professional service of the Commission", concluded Živković.
He expects that with the adoption of the new law, the procurement system will be further improved and the problems that are occurring now will be solved.
The only two institutions that so far have not complied with the final decisions of the State Commission are the Engineering Chamber of Montenegro and the local utility company from the Municipality of Berana, which the Government has been informed about.
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