RULES ON PUBLIC PROCUREMENT
The present rules on procurement procedures are set pursuant to Article 87.2.5 of
the Law No. 04/L 042 on Public Procurement in the Republic of Kosovo (hereinafter
the PPL).
The rules are complementing and clarifying the provisions of the PPL and shall be
read in compliance with the provisions of the PPL.
Section 1
Scope of application and use of standard forms
1. Within the scope of the PPL as specified in Article 2 of the PPL, the present rules
shall be followed by contracting authorities, persons, economic operators and
undertakings as these legal and natural persons are defined in Article 4, paragraph
1, of the PPL.
2. Pursuant to Article 87 of the PPL, contracting authorities shall prepare their
procurement documents by using the relevant standard forms to be found in the
PPRC’s web-site: www.krpp.rks-gov.net.
“Using the standard forms” here means that procurement documents shall contain
at least all the information, requirements, specifications and conditions stated in the
standard forms as obligatory information, and in general appear clear and
understandable for the interested economic operators.
Section 2
Calculating the estimated value of a public contract
1. Pursuant to Articles 16 to 18 of the PPL, the value of an envisaged public
contract shall be estimated prior to the initiation of the procurement procedure.
Such estimate shall be reasonable and realistic for the envisaged contract from the
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point of view of the most efficient, cost-effective, and transparent and fair use of
public funds and resources.
2. In estimating the value of the contract, the contracting authority must take into
account:
2.1 published prices, from Kosovo Office of Statistics and/or other official
indicative prices (such as tax office, customs office, chamber of commerce,
etc); and/or
2.2
local market prices; and/or
2.3 prices of previous contracts signed by the same or other contracting
authorities; and/or
2.4 published international prices
3. The contracting authority responsible must initiate a comparison of prices
available together with a cost analysis of the relevant technical specifications
regarding the goods, services or works to be procured.
4. In case of contracts made up of a set of homogenous works, goods or services
serving a similar purpose and where the combined value is such that only few
economic operators would be able to provide them all, the contract may be divided
into lots. Division into lots may be performed in order to encouraging the
participation of the small and medium sized enterprises and/or to save resources
through diminishing the number of tenders. Division into lots does not affect the
value of the tender as this consists of the aggregate of the value of the lots.
5. In case where public contracts that are regular in nature or is intended to be
repeated within a given period, the calculation of the estimated value of the
contract shall be based in the envisaged needs of the subject of such contracts for
the fiscal year or for a relevant of twelve months period.
6. When an envisaged contract contains an option, the value of the contract must
be the maximum potential total amount of the contract including such option. By
option is meant a right for the contracting authority to request additional deliveries
at the same price and on the same conditions as stated in the contract. Such
options must be encompassed in publications and be specified in the tender dossier.
Options may not otherwise be requested.
Section 3
Classifying a public contract or a design contest by estimated value
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1. With reference to Article 19 of the PPL, the following codes for class of an
envisaged public contract according to the estimated value shall be used in
“Procurement number” as provided for in Section 4 of these Rules:
1.
2.
3.
4.
Large value contract,
Medium value contract,
Low value contract,
Minimal value contract.
2. In classifying a design contest by estimated or calculated value according to
Article 20 of the PPL, the codes mentioned in Paragraph 3.1 of these Rules shall be
used analogously in “Procurement number”, except the code “4” which is not
applicable for design contests.
Section 4
Procurement number
1. Any procurement activity shall be codified by the contracting authority with a
“Procurement number” for swift identification and for monitoring activities,
statistical purposes etc.
1.1 The Procurement number, hereby established, is composed of the
following elements:
I.
Contracting authority identification;
II.
Identification of the procurement year;
III.
A serial number of 3 digits, restarting at 1 each procurement year;
IV. Code for type of procurement, as referred in Paragraph 2 of this
Section;
V. Code for range of estimated value of the envisaged contract or design
contest, as referred in the Section 3, Paragraph 1 and 2 of these rules;
VI.
Code for procedure used, as referred in Paragraph 3 of this Section.
2. With reference to paragraph 1.1, indent (iv), of this Section, the codes for type
of procurement to be used in the Procurement number, are the following:
1. for Supply,
2. for Service,
3. for consulting services
4. for Design contest,
5. for Works,
6. for Works concession.
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3. With reference to paragraph 1.1, indent (vi), of this Section, the codes for
procurement procedure to be used in the Procurement number, are the following:
1.
2.
3.
4.
5.
6.
7.
for
for
for
for
for
for
for
Open procedure,
Restricted procedure,
Negotiated procedure after publication of a contract notice,
Negotiated procedure without publication of a contract notice,
Price quotation procedure,
Procedure for minimal value contracts,
Design contest.
Section 5
Summary record
The contracting authority shall compile a consolidated summary annual report on all
public contracts, concluded within the previous fiscal year. Such report shall be
prepared by use of the standard form and shall be sent to PPRC within 5 days upon
its written request, but not later than 31st of January of each fiscal year.
Section 6
Tender dossier
1. Pursuant to Article 27 of the PPL, the contracting authority shall draw up a
tender dossier for each envisaged contract, unless the contract is of minimal value.
When a design contest is being conducted, a design contest dossier shall be drawn
up. Tender dossiers and design contest dossiers shall be prepared by use of the
relevant standard forms.
2. In case technical specifications and/or other commercial information included in
the tender dossier or its annexes most efficiently are expressed by use of solely
English language or any other commercially commonly used language, contracting
authorities do not need to prepare such specifications and/or information in the
Albanian and Serbian languages on the condition that no discrimination thereby is
created.
3. Contracting authority shall always make copies of tender dossier, which shall be
delivered to any economic operator in accordance with Article 48 of the PPL. Only in
exceptional cases, when the material includes expensive models or large amount of
technical prints may the contracting authority demand payment for the tender
dossier.
Section 7
Technical specifications
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1. Pursuant to Articles 28 and 29 of the PPL, the contracting authority shall set
forth in the tender dossier and in the contract notice all technical specifications
which any tender shall comply with. Such technical specifications shall describe and
define, in a non-discriminatory manner, the mandatory characteristics of the object
of the contract, such as quality, performance, design requirements, dimensions,
safety, quality assurance, terminology, symbols, testing and test methods,
packaging, marking and labelling. The contracting authority shall indicate whether
the technical specifications set forth are obligatory or minimum requirements.
2. Use of standards may include quality assurance standards as mentioned in the
Article 70 of the PPL.
Section 8
Selection criteria
1. Pursuant to Article 56 of the PPL, an economic operator shall be deemed to be
qualified to participate to the procurement procedure if:
1.1
1.2
such economic operator proves to be eligible pursuant to Article 65 of
the PPL by providing the evidence required by the contracting
authority in accordance with Section 9 of these Rules, and
such economic operator, in the event the contracting authority has
established minimum qualification requirements, meets such
requirements and proves it by providing the evidence required by the
contracting authority in accordance with Articles from 64 to 69 of the
PPL.
2. Eligibility criteria and minimum qualification requirements together are
characterised as “selection criteria”. Selection criteria shall be clearly specified in
the contract notice and the tender dossier.
3. When establishing minimum qualification requirements, the contracting authority
shall pay due attention to the development of new economic operators and
formulate the minimum qualification requirements in a way that does not exclude
new-established economic operators, which possess a reasonably sufficient
economic, financial and/or technical capability. "Reasonably sufficient" shall be
understood in connection with (i) the estimated value of the contract, and (ii) fair
use of public funds.
4. Tender and/or performance security may in particular be used as instruments to
secure the proper execution of the contract.
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Section 9
Documentary evidence of eligibility
1. A contracting authority shall accept the following as sufficient evidence that none
of the cases specified in Articles 65 of the PPL applies to economic operators
participating in a procurement activity or in the performance of any public contract:
1.1
1.2
1.3
1.4
1.5
as regards Article 65, paragraphs 1.1 and 1.2 of the PPL, under oath
declaration signed by the concerned economic operator;
as regards Article 65, paragraphs 3.1, 3.3, 3.4, 3.5, 3.6, 4.1, 4.2 and
4.4 of the PPL, an extract from the “judicial record” or, failing that, an
equivalent document issued by a competent judicial or administrative
authority of the economic operator’s country of establishment;
as regards Article 65, paragraphs 4.8, for the social security, and 4.9
and 4.11 of the PPL, a certificate issued by the competent authority or
public operator attesting that such situation does not exist.
as regards Article 65, paragraphs 4.8 of the PPL, for tax contribution a
proof issued by Tax administration of place of establishment of
economic operator;
With regard to Article 65, paragraph 4.10 of the PPL, a certificate
issued by the Procurement Review Body. PRB is obliged to compile a
list for all those economic operators who have not agreed with the
decision issued by the PRB and is obliged to publish in the web-site.
Evidence regarding the requirements of Article 65 of the PPL, shall be
required to be provided by the tenderer to whom contracting authority
intends to award the contract. In case of a restricted or negotiated procedure
after the publication of the contract notice, proof regarding eligibility
requirements shall be requested to be submitted by the applicants whom the
contracting authority intends to invite to tender (short-listed). These
documents should be submitted by the tenderer or candidate prior to the
contract award or prior to the Contracting Authority’s final prequalification
decision. The time limit for submitting the mentioned documentation is five
(5) days from receipt of the contracting authority's notice of intention of
awarding the contract or prequalifying the candidate. Failing to submit one of
these documents within the time limit mentioned, the tenderer shall be
rejected and the contracting authority shall continue with the next ranked
tenderer.
1.6
As regards all other provisions set forth in Article 65 of the PPL, as well
as in the case where the issue of documents or certificates mentioned
above are not obtainable for objective reasons, or where such
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documents do not cover all cases for which the evidence has to be
produced, a written declaration signed under oath by the concerned
economic operator may be accepted as sufficient evidence.
2. Notwithstanding Article 65 of the PPL, in all cases, the submitting economic
operator shall be required to acknowledge the possibility of criminal and civil
sanctions, penalties and damages, if such economic operator intentionally or
negligently submits any document, declaration or statement containing materially
false or misleading information.
Section 10
Documentary evidence of professional suitability
In the event, economic operators are required by the contracting authority to
submit documentary evidence of professional suitability as mentioned in Article 66
of the PPL, an economic operator shall submit a copy of certificate, confirmed from
the competent administrative body responsible for attesting professional suitability
or licenses. The provisions of Section 9, paragraph 2, of the present rules apply also
to information given under this provision.
Section 11
Documentary evidence of technical ability
1. If, for any valid reason, an economic operator is unable to provide the references
requested by the contracting authority pursuant to Articles 69 of the PPL, such
economic operator may be permitted to demonstrate its technical and/or
professional capability by any other document that the contracting authority,
ensuring competition and reasonable treatment of newly established economic
operators, considers appropriate. Alternatively the contracting authority can ask for
lists of reference projects and contact details at the referee and verify the
references if appropriate with the contact details.
2. On requests from an economic operator to be permitted to make use of
alternative documentation as mentioned in this Section, the contracting authority
must grant the economic operator sufficient time for the mentioned documentation.
Such time limit may not be less than fifteen (15) days.
Section 12
Groups of economic operators
1. In pursuance of Article 71 of the PPL, a tender may be submitted by a group of
economic operators.
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2. Such groups shall not be required to assume a specific legal form in order to
submit the tender; however, the group selected may be required to do so after it
has been awarded the concerned contract, to the extent that such requirement is
necessary for the satisfactory performance of the contract. In such case, the
assuming of the specific legal form shall be a pre-condition to the signing of the
contract.
3. Each economic operator of such group must satisfy the legal requirements
provided by Articles 65 of the PPL. The requirements pursuant Articles 68 and 69 of
the PPL must be satisfied by the group altogether.
4. Economic Operators are not allowed to present a tender as individual and as a
member of a “group” at the same time in the same procurement activity.
5. The group shall not be modified after the submission of the tender, if so the
tender must be rejected.
Section 13
Acceptable instruments for tender and performance security
1. Notwithstanding Articles 57 and 63 of the PPL, the tender and performance
security shall be unconditional. For the purposes of the above, the word
“unconditional” means a guarantee on demand and that there should not be any
conditions or requirements for any evidence inserted in the tender security other
than a requirement that the Contracting Authority shall provide a document that
breaches in the tender rules have occurred. Therefore there is no further need for
the contracting authority to prove breach.
2. Pursuant to Articles 57, paragraph 5, and 63, paragraph 5, of the PPL,
qualification requirements of tender and performance security’s issuers, as set forth
in the tender dossier, shall be non-discriminatory, shall not require the issuer itself
to have a business in a specific location, and in any case shall be limited to
requirements that are directly related to ensuring the financial stability and
reliability of such issuers.
Section 14
Forfeiture of performance security
1. In pursuance of Article 63 of the PPL, performance security posted by the
selected tenderer shall be forfeited in the event:
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1.1
1.2
of breach of the signed contract, which causes material damage to the
contracting authority and/or requires the contracting authority to
incur material expense in obtaining the completion of such contract;
of breach of signed contract and are left unpaid many workers,
subcontractors and/or supplier of goods.
2. Forfeiture of the performance security does not prevent the contracting authority
from seeking additional damages under the contract and equally if the performance
security is of a higher value than the damages from the breach, the contracting
authority should refund the difference.
Section 15
Tender validity
1. Contracting authorities shall expressly state in the tender dossier the required
tender validity period specified as number of calendar days from the deadline for
submission of tenders. The required tender validity period shall be no longer than
necessary, and shall be long enough for the contracting authority to evaluate the
received tenders and to award and sign the contract.
2. Under justifiable and/or exceptional circumstances unexpected delays appear,
meaning that the evaluation process cannot be finalized within the validity period of
the tenders because of clarification of technically complex details, the CA shall
request the EOs to extend the validity of their tenders. It is open to each tenderer
to decide whether it wishes to prolong. Failure to prolong the tender validity shall
make that tender “unresponsive”.
3. The tender validity period shall be determined in a minimum 90 calendar days
for large value contracts and minimum 60 calendar days for medium value
contracts.
Section 16
Establishment of Evaluation Committees
1. With reference to Article 59, paragraph 1, of the PPL, a contracting authority
must establish an evaluation committee (hereinafter referred to as “committee”)
with solely advisory functions to the Procurement Officer.
2. The following principles shall form basis for establishing and functioning of such
Committee:
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2.1. The members of the committee shall fulfil the requirements as to
eligibility as specified for staff members of a Procurement Department in
Article 23.3 of the PPL, and shall sign a written declaration.
2.2 Members of the Committee are strictly subject to the provisions of Article
11 of the PPL with regard to protection of confidential business information.
2.3. The Procurement Officer and/or staff members of the Procurement
Department may not serve as members of the evaluation committee. The
procurement officer shall only chair the tender evaluation committee with no
voting rights. He/she shall organise, advice and direct the evaluation
committee’s work and ensure compliance with the provisions of the PPL.
2.4
The number of the members of the evaluation committee shall
depend on the value and complexity of the procurement activity, but shall in
all cases be a minimum of (3) three and the number shall always be odd.
The committee shall be composed of members with the necessary skills,
knowledge and experience, relevant to procurement requirements.
2.5. The contracting authority shall clearly set the tasks to be performed by
the Committee, which in any case shall not restrict the independence of the
Committee in the decision-making process.
2.6. The Committee shall function from the day of adoption of the decision
concerning its establishment until the fulfilment of all tasks given by the
contracting authority in writing, or until a decision to terminate the
procurement procedure may be taken. In case one or more members are not
able to participate in the committee, due to objective factors and
circumstances, they shall be substituted on the same way as their
nomination.
2.7. The Committee shall adopt decisions at the meetings by a simple
majority vote, voting by open ballot. The voting process shall be recorded in
the minutes.
2.8. The contracting authority shall have the right to invite, on its own or the
Committee’s initiative, external experts where specific technical or
specialized knowledge is required by the object of the procurement and is not
otherwise available within the contracting authority. Such experts shall
acknowledge in writing that they are strictly subject to the provisions of
Article 11 of the PPL with regard to protection of confidential business
information.
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2.9. The Committee, at the end of its task, shall provide to Procurement
Officer a recommendation together with a report on its work and a statement
of reasons supporting that recommendation.
2.10. The final decision on the award of the contract remains the
responsibility of the responsible Procurement Officer. The Procurement
Officer may accept the committee’s recommendation or reject it. Where the
committee’s recommendation is rejected, the Procurement Officer shall
explain the reasons in writing. Such explanation shall be contained in the
record of the procurement activity. The Contracting Authorities Chief
Administrative Officer shall immediately be informed about such rejection.
2.11 In the event that a member of the Tender Evaluation Committee
finds out that he/she has a conflict of interest in the tender evaluation,
he/she shall declare his/her interest in the tender and leave the meeting
and shall not participate further in the evaluation process in relation to the
said submission. The individual, who no longer takes part in the evaluation,
is still sworn to confidentiality.
Section 17
Examination, evaluation, comparing of tenders and awarding contracts
1. Contracting authorities may only use requirements, criteria and specifications
published or laid down in the tender dossier when performing selection of tenderers
and award of contract. Accordingly, the contracting authorities cannot change,
modify or omit already introduced requirements, criteria or specifications or
introduce new ones during the procurement procedure.
2. The provisions mentioned in paragraph 1 of this Section also apply, when
contracting authorities re-evaluate a procurement procedure in order to correct
erroneous decisions and when a re-evaluation is done as a result of a decision from
PRB including an order to re-evaluate in accordance with Article 105, paragraph
2.8, of the PPL.
3. In situations as specified in paragraph 2 of this Section, re-evaluation may only
lead to different results with regard to the selection and award process, when
conditions have changed. A decision to re-evaluate the selection of applicants or
awarding of a contract does not in itself include a change in the initial result.
Section 18
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Termination and cancellation of a procurement procedure
1. When a procurement procedure has been initiated by publication of a contract
notice or a design contest notice, it terminates on the day of the publication of the
Contract Award Notice or Design Contest Result Notice.
2. Notwithstanding Article 62 of the PPL, the procurement Procedure is cancelled for
one of the following reasons:
2.1 no tenders are submitted within the specified deadline;
2.2 none of the received tenders are responsive;
2.3 all responsive tenders contain prices which substantially exceed the
contracting authority’s budget;
2.4 the number of the received responsive tenders is less than two (2);
2.5 no requests to participate in restricted or negotiated procedure after the
publication are submitted within the specified deadline;
2.6 the number of qualified candidates in restricted procedure or negotiated
procedure after the publication is less than two (2);
2.7 no projects are submitted within the specified deadline;
2.8 or the number of the submitted projects in a design contest is less than
two (2);
2.9 none of the received projects in a design contest are responsive.
3. In addition to what is provided in the Paragraph 2 of this Section, the award
procedure is cancelled due to the demonstrable events and/or reasons that are
beyond the contracting authority’s control and that were not predictable at the time
of the initiation of the procurement procedure.
4. Notwithstanding the provisions in Paragraphs 2.4, 2.6 and 2.8 of this Section,
the procurement process may continue if circumstances provided in Article 32.5 of
the PPL are applicable.
5. In case of termination based on the circumstances and reasons stated in this
Section, the contracting authority shall incur no liability towards tenderers,
participants or candidates for cancellation of a procurement procedure, subject to
the provisions of Article 105, paragraph 2.9 of the PPL concerning compensation to
a complainant.
6. When a procurement procedure is cancelled for one of the reasons provided in
this Section, if the contracting authority still wants to proceed with the respective
procurement activity, may initiate a procurement procedure without changing the
serial number of the procurement, but by identifying it with “Re-tender” in the
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Standard Form “Contract Notice”. Word “Re-tender” should be written immediately
after title “Contract Notice”.
Section 19
Framework contracts
1. Public framework contracts as defined in Article 4, Paragraph 1.46, of the PPL,
are agreements having a purpose of establishing the terms governing contracts to
be awarded over a given period. According to Article 38, Paragraph 2, of the PPL,
such contracts may have a duration of up to 36 months.
2. A contracting authority may use framework contracts to establish a framework
for delivery of supplies, services or works over a given period provided the subjects
of the needs are covered by the framework contract.
A number of contracting authorities may agree to use common framework contracts
provided all the contracting authorities have appeared as contracting authorities on
the publication of the contract notice initiating the procedure.
Government may decide that all contracting authorities as defined in Article 4,
Paragraph 1.13, of the PPL, excluding the Public Service Operators for which an
approval from the relevant supervisory board is needed, must be subject to
framework contracts and accordingly are not allowed to procure the goods, services
or works from other economic operators and on other conditions than those agreed
in the framework contract. The CPA, in accordance with Article 95 of the PPL, will
conduct and be responsible for the procurements done according to such framework
contracts.
3. In addition to what is provided in Article 38, Paragraph 5, of the PPL, contracts
based on a framework agreement shall be awarded in accordance with the
procedures laid down in paragraphs 4 and 5 of this Section. Those procedures may
be applied only between the contracting authorities and the economic operators
originally party to the framework agreement.
4. When a framework contract is concluded with a single economic operator in
accordance with Article 38, Paragraph 5.1 of the PPL, the contract must be
concluded so that it contains all conditions including prices. The Contracting
Authority shall place the order in writing whenever the needs appear typically with
regard to quantities and delivery time; however other conditions including prices
must remain unchanged from the framework contract.
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5. Where a framework contract is concluded with a number of economic operators
in accordance with Article 38, Paragraph 5.2, of the PPL, the minimum number of
economic operators must be at least three.
Contracts based on framework may be awarded either:
5.1 by application of the terms laid down in the framework contract without
reopening competition; or
5.2 where not all the terms are laid down in the framework contracts, by
reopening competition amongst the parties of the framework contract itself
on the basis of identical and, if necessary, more precisely formulated terms,
including prices and quantities, and where appropriate, other terms referred
to in the specifications of the framework contract.
In such case, without prejudice to the article 38, Paragraph 6 of the PPL, the
contracts shall be awarded in accordance with the following procedure:
(i) for every contract to be awarded, contracting authorities shall consult in
writing all the economic operators part of the frame contract capable of
performing the contract;
(ii) contracting authorities shall fix a time limit of minimum five days which
shall be sufficiently long to allow tenders for each specific contract to be
submitted, taking into account factors such as the complexity of the subject
matter of the contract and the time needed to send in tenders;
(iii) tenders shall be submitted in writing, and their content shall remain
confidential;
(iv) contracting authorities shall award each contract to the tenderer who has
submitted the best tender on the basis of the award criteria set out in the
specifications of the framework contract for the mini-tenders.
6. In accordance with Article 38 of the PPL, Contracting authorities may not use
framework agreements improperly or in such a way as to prevent, restrict or distort
competition.
7. The contracting authority must decide and indicate in the tender dossier whether
the terms of the framework contract are exhaustive and only lead to subsequent
contracts or call offs without reopening the competition or whether a reopening of
the competition through a mini tender is envisaged.
Section 20
Tender forms and submission of tenders
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1. With reference to PPL, the contracting authorities shall specify in the tender
dossier, as provided in Article 27 of the PPL, the tender form which shall be filled in
and signed by the tenderers. Such tender form shall contain:
a. Economic operator identification,
b. Tenderer’s declaration(s),
c. Tender price specifications
2. A tender including all its annexes shall be submitted to the contracting authority
in one original exemplar and the number of copies that the contracting authority
has stated clearly in the tender dossier. The original tender, as well as all the
copies, shall be signed by the tenderer. One of the submitted copies shall be kept
unopened by the contracting authority as evidence in case of doubt on the content
of the tender.
3. The tenderer shall seal the original tender and each copy in separate envelopes
and mark the envelopes clearly as “Original” and “Copy”. On the front of each one
of such envelopes shall be added exactly and nothing else than (i) the Procurement
number as stated in the tender dossier and (ii) the name and address of the
tenderer. The envelopes shall then be sealed in an outer envelope marked with
Procurement number, warning that the envelope shall not be opened before such
date and time as stated for tender opening and the name and address of the
tenderer.
Section 21
Open and restricted procedures
1. The contracting authorities may choose to use the open and restricted
procedures.
2. When awarding a contract through the use of the open procedure the contracting
authority must verify that the economic operators are eligible and that they satisfy
the minimum selection criteria as laid down in the contract notice and tender
dossier. Only after verifying that the economic operator is eligible and fulfils the
mentioned criteria may the tender be evaluated and compared to other tenders.
Tenders that are not eligible or do not fulfil the selection criteria may not be taken
into consideration while awarding the contract.
Section 22
One envelope and two envelope system
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1. Tendering procedures regarding open procedures for supplies, services and
works are done according to a one envelope system, which means that tenders are
submitted in a single envelope containing all information regarding the tender
including documentation for eligibility, required documentation for fulfilling the
economic and technical requirements and any technical information regarding
performance of the contract as requested in the tender dossier. Further, the
mentioned envelope contains the tender as such meaning prices, including where
necessary sub prices and calculations.
2. A two envelope system may be applied, when an open procedure or restricted
procedure is used, for consultancy services, especially intellectual services.
3. In cases mentioned in Paragraph 2 of this Section, the contracting authorities
must arrange the tendering in a way that requests the economic operators to
submit a technical description including their proposal for methods and other
technical related details including experience, expertise, financial capabilities and
detailed technical proposals related to the project as outlined in the tender
documents. The second envelope may only include the financial part of the tender
including price or prices regarding the described tender.
4. When using a two envelope system the contracting authorities require in the
tender dossier the economic operators to submit their tenders in two envelopes
contained in a common envelope.
5. At the time of opening tenders, only the envelopes containing technical
information are opened and the tenders are made available for a technical
evaluation and ranking of those that have been determined as being qualified for
award as substantially responsive Technical Proposals. The envelopes containing
the financial part of the tender may not be opened until the technical evaluation
and ranking has been completed and the tenderers of those tenders ranked have
been notified about time and place for the opening informing them of their right to
be presented at the meeting.
6. On the opening session regarding the financial part of the tender the contracting
authority reads out the points given for technical proposal and reads out the
financial proposal. The Contracting Authority shall evaluate and compare combined
technical and financial proposals to determine the best evaluated tender and
award the contract.
Section 23
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Selecting tenderers to be invited to submit tenders in restricted procedures
or negotiated procedure after the publication of the contract notice
1. When the restricted or negotiated procedure is used, the contracting authority
must evaluate the applications received timely with respect to the time limits used.
All documents required must be included when an economic operator applies for
qualification.
2. The contracting authorities may require supplementary information and
documentation, however documentation requested in the contract notice may only
be taken into consideration, if delivered within the set time limits.
3. When qualifying economic operators for tendering in restricted procedures or
negotiated procedure after the publication of the contract notice, the contracting
authorities must qualify all economic operators that are eligible and fulfil the
selection criteria; however if more than six (6) economic operators are regarded as
qualified the contracting authority shall only invite the six most qualified economic
operators to submit a tender. When selecting the most qualified economic operators
the contracting authority must be objective and respect the principle of equal
treatment. Selection of the economic operators to tender must be decided with
reference to the most qualified with regards to economy, relevant technical
equipment and facilities as well as experience with regard to practical
implementation of contracts comparable. The Contracting Authority shall specify
factors which shall be taken into consideration during this re-examination of the
applications.
4. The economic operators that have been qualified during the qualification phase
as mentioned in paragraphs 1 and 2 of this Section may participate in the tendering
procedure. Accordingly the contracting authority shall only forward the tender
dossiers to the qualified economic operators.
Section 24
Arithmetic errors
1. When a contracting authority is examining, evaluating and comparing tenders in
accordance with Article 59 of the PPL, this may only be performed on basis of the
selection criteria and the award criteria laid down in the procedure, and eligibility
and responsiveness may only be decided using the information given in a fair and
objective way.
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2. If an error of purely arithmetical nature is discovered during the evaluation, the
contracting authority must correct such errors. All tenderers must be informed
hereof in writing.
3. Errors mentioned in Paragraph 2 of this Section may only be corrected if the
correction of the aforementioned errors does not alter any material term or aspect
of the tender or if the error contains only minor deviations that does not materially
change the requirements stated in the tender. The correction must be quantified
and the corrected figures shall be used when the comparison of tenders are
performed.
Section 25
Abnormally Low Tender
1. When a contracting authority considers a submitted tender abnormally low in
compliance with Article 61, Paragraph 1, of the PPL, an individual evaluation of the
tender in question must be performed.
2. The contracting authority must request in writing from the economic operator
which has submitted a tender that appears to be abnormally low a written
declaration which includes a detailed breakdown of the relevant parts of the tender
and which includes an explanation for the low price.
3. In determining whether a tender is abnormally low in accordance with Article 61
of the PPL the contracting authority must take into considerations the elements of
the tender including elements of subtotals as wages as well as salaries, materials,
overheads and profits.
4. If the tender is regarded as abnormally low it must be rejected and not taken in
consideration when the contract is awarded. PPRC must be notified of a rejection
within two days in accordance with Article 61, Paragraph5, of the PPL.
5. The tenderer concerned must be informed about the final result of the
evaluation.
Section 26
Quantities regarding goods, works and service contracts
1. The Contracting Authorities shall upon preparation of tendering materials
including publications, tendering materials and contracts specify quantities.
2. In case of application of the framework contracts where quantities may not be
precisely foreseen an estimate of quantities should be included. Such estimates
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may be based on earlier consumption corrected if needed for known variations. The
quantities should as far as possible have an indication of delivery times.
3. The total value of the contracts or the estimated value of the framework
contracts must be calculated on basis of item prices multiplied with the relevant
quantities or estimated quantities as mentioned in paragraph 2.
Section 27
Prices
1. Prices stated in tenders and subsequent prices in awarded contracts are fixedprices and binding to the parties of the contract. Prices may not be changed during
the duration of a contract; however long term contracts may contain possibilities of
adjusting prices in accordance with the Paragraph 2 of this Section.
2. Contracts with a duration of more than one year may include a specific clause
regarding adjustment of prices; however such adjustments must be index-linked to
an official price-index settled authoritatively either in Kosovo or in another country.
The price-index must be specified in the tender dossier.
Section 28
Subcontracting
1. According to Article 30 of the PPL, economic operators may sub-contract parts of
awarded contracts; however such subcontracting may not exceed forty (40) percent
of the total value of the awarded contract.
2. The economic operator that is awarded a contract retains the full responsibility
for the fulfilment of the contract in accordance with the contract regardless of any
part being subcontracted to third party.
3. In the tender dossier the contracting authorities shall invite the economic
operators to indicate in their tender any part of the contract that may be
subcontracted to third parties. This indication must contain identification of the
proposed subcontractors including the activity that is intended to be subcontracted.
4. The tenderer shall submit evidences pertaining the subcontractor’s fulfilment of
the eligibility for participation in the tender procedure as provided in Articles 65 of
the PPL.
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5. The economic operator must notify the contracting authority of any change in the
plans to subcontract that occurs after submission of the tender. The contracting
authority may reject any subcontractor so indicated.
Section 29
Contract management activities
1. The contracting authority considers in all tenders the needs for contract
management and implements the necessary procedures and processes for such
management. Whenever contract management requires external expertise the
relevant procurement procedures must be initiated at a time that allows the
management to be initiated at the time of implementing the contract for delivery of
the supply, service or works.
2. Contract management regarding large value works contracts as defined in Article
19, Paragraph 1.2, of the PPL must be conducted in accordance with the conditions
set by the International Federation of Consulting Engineers - FIDIC - including
employing engineers authorised by the mentioned organisation.
Section 30
Training of procurement officers
1. Training of procurement officers includes training for "a basic procurement
professional certificate" and training for "an advanced procurement professional
certificate". The training may be attended by:
1.1 persons who are procurement officers, staff members of Procurement
units and civil servants;
1.2 persons holding an internationally recognised masters certificate or
diploma in procurement; and
1.3 any other persons
2. KIPA decides once a year before January 31, how many persons under subparagraph 1.3 can be accommodated on the training. The decision mentioned must
be published on KIPA's and PPRC’s web site.
3. Persons mentioned under sub-paragraph 1.3 of this Section that want to attend
the training apply in writing to KIPA. Access will be granted to the number of
persons decided by KIPA. If the number of applicants is higher than the number of
places allocated by KIPA, applicants will be selected in the order of dates of
application.
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4. KIPA decides each year before the date mentioned in Paragraph 2 of this Section
the fee to be paid by persons mentioned in sub-paragraph 1.3 for attending the
training. The fee must be set on basis of calculated costs for the training including
accommodation and trainer's salary divided by the number of trainees that can
attend. KIPA may impose an overhead of up to 30 percent of the calculated fee.
5. Payments for training material for the persons mentioned under sub-paragraph
1.3 may only be set as covering the costs of reproducing the material to the
trainees.
6. Persons mentioned under sub-paragraphs 1.1 and 1.2 may not be charged the
fee mentioned under paragraph 4 of this Section or for training materials.
7. KIPA in corporation with PPRC and after consulting the Ministry of Education
decides whether an international advanced or master certificate or diploma in
procurement is considered internationally recognised. The decision may be
appealed to the courts of Kosovo.
8. KIPA in corporation with PPRC decides every year before January 31 either:
(i) the content of the basic procurement training and also decides the number of
days for the training. The mentioned number of days may not be lower than
10 days per year;
(ii) the content of the advanced procurement training and also decides the
number of days for the training. The mentioned number of days may not be
lower than 15 day per year.
9. The Procurement Professional Certificates, as referred in the Paragraph 1 of this
Section, may be revoked by PRB in accordance with the Article 25, Paragraph 8, of
the PPL.
10. Subject to provisions under the aforementioned Article 25, Paragraph 8, of PPL,
PRB may proceed to the revocation of the Procurement Professional Certificate on
request from PPRC, where the latter, accordingly to what is provided by Article 87,
Paragraph 2.4 of the PPL, has evidence that the conditions required under Articles
32, Paragraph 4, and 35 of the PPL have been violated.
Moreover, in such cases, PRB, in accordance with Article 133 of the PPL, may
declare as ineffective the public contract signed in violation of provisions under
Articles 32, Paragraph 4, and/or 35 of the PPL.
Section 31
Public Service Operators
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1. When awarding public contracts, Public Service Operators, as individuated in the
Article 4, paragraph 1.50, of the PPL, are subject to the provisions referred in the
following paragraphs and to those provided in the Title V of the PPL.
2. Accordingly to Paragraph 1 of this Section, Public Service Operators are:
2.1 public authorities which pursue a Public Service Activity as referred in the
Article 4, paragraph 1.49, of the PPL;
2.2 Public undertakings, as individuated by the Article 4, Paragraph 1.51, of
the PPL, which pursue a Public Service Activity as referred in the Article 4,
paragraph 1.49, of the PPL;
2.3. private companies and all the other entities referred in the Article 4,
Paragraph 1.13, of the PPL, which pursue a Public Service Activity as referred
in the Article 4, paragraph 1.49, of the PPL and operate on the basis of
Special or Exclusive Rights as defined in Article 4, Paragraph 1.58, of the
PPL.
3. Due to the special nature of the public service operators and their obligation to
serve the public on a non-stop basis relative flexibility has been allowed.
4. The mentioned flexibility consists of allowing the public service operators two
additional procurement procedures both regarding selection or prequalification of
economic operators. The two mentioned procedures are invitation to tender by
means of indicative notices and the qualification system.
5. Invitation to tender by means of indicative notices eliminates the publication of
the contract notice, provided the indicative notice:
(i) clearly refers to the envisaged supply, service or works;
(ii) states that tenders will be invited without further publications; and
(iii) states that economic operators must express their interest in writing when
the indicative notice is published.
6. Public service operators may publish their indicative notices at any time of the
year; such publications does not replace the annual indicative notice mentioned in
Article 39 of the PPL, but should cover needed procurements that was not
foreseeable when the annual publication was prepared at the beginning of the year.
7. Public service operators that wish to use a qualification system shall publish this
on the PPRC web site inviting economic operators to apply for inclusion on the list of
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suppliers that meets the requirements. A qualification system may run only for
three years, after which a new publication must e submitted. All economic
operators must then apply. This also includes those accepted on the previous
qualifications system.
8. The public service provider using a qualification system must update their
system every six months including all changes to the criteria and corresponding
documentation requirements and the method for verification of the criteria.
Updating should be performed in hard copy and electronic ways including a
publication on the PPRC web site.
9. The public service operators wanting to make use of the procedures mentioned
in paragraph 4 of this Section must ask the economic operators which have
indicated interest after publication of the indicative notice and which have been
qualified on the qualification system to confirm their interest. This must be done in
writing.
10. The public service operators then send the tender dossiers asking for tenders to
those economic operators that have confirmed their interest.
Section 32
Use of electronic means including e-procurements, e-auctions and a
dynamic purchasing system
1. The Government may issue rules concerning use of electronic procurement
methods, such as e-procurements, e-auctions and a dynamic purchasing system.
2. Use of such methods must be done in accordance with the conditions stated in
Annex 1 to these rules.
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Annex 1 (e-procurement)
In accordance with the provisions in Section 32 of these Rules, the following must
be implemented.
1. Requirements relating to devices for the electronic receipt of
tenders, requests to participate.
1. Contracting authorities may make use of electronic means of communications, as
defined in the Article 4, paragraph 1.21, of the PPL, and recur to electronic
purchasing techniques based on the use of electronic means of communications
provided that such use complies with Article 129 of the PPL and do not in any way
conflict with the principles of equal treatment, non-discrimination and transparency.
2. Contracting authorities may provide that all communications, except site visits
and pre-tender meetings in accordance with Article 55 of the PPL, or some of the
communication and information exchange with the economic operators, may be
conducted by electronic means in accordance with paragraphs 3 and 4 of this
Section.
In such cases the electronic means of communication chosen by the contracting
authority shall be generally available and interoperable with the information and
communication technology products in general use, and thus not restrict economic
operators' access to the tendering procedure.
3. Communication and the exchange and storage of information by electronic
means shall be carried out in such a way as to ensure that the integrity of data and
the confidentiality of tenders and requests to participate are preserved, and that
the contracting authorities examine the content of tenders and requests to
participate only after the time limit set for submitting them has expired.
4. Devices for the electronic receipt of tenders, requests for participation and plans
and projects in contests must at least guarantee, through technical means and
appropriate procedures, that:
4.1 electronic signatures relating to tenders, requests to participate and the
forwarding of plans and projects comply with national provisions adopted
pursuant to Directive 1999/93/EC;
4.2 the exact time and date of the receipt of tenders, requests to participate
and the submission of plans and projects can be determined precisely;
4.3 it may be reasonably ensured that, before the time limits laid down, no
one can have access to data transmitted under these requirements;
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4.4 if that access prohibition is infringed, it may be reasonably ensured that
the infringement is clearly detectable;
4.5 only authorised persons may set or change the dates for opening data
received;
4.6 during the different stages of the contract award procedure or of the
contest, access to all data submitted, or to part thereof, must be possible
only through simultaneous action by authorised persons;
4.7 simultaneous actions by authorised persons must give access to data
transmitted only after the prescribed date;
4.8 data received and opened in accordance with these requirements must
remain accessible only to persons authorized to acquaint themselves
therewith.
2. Dynamic Purchasing System
1. In order to set up a dynamic purchasing system, as defined in the Article 4, subparagraph 1.18 of the PPL, contracting authorities shall follow the rules of the open
procedure in all its phases up to the award of the contracts to be concluded under
this system. All the tenderers satisfying the selection criteria and having submitted
an indicative tender which complies with the specification and any possible
additional documents shall be admitted to the system; indicative tenders may be
improved at any time provided that they continue to comply with the specification.
With a view to setting up the system and to the award of contracts under that
system, contracting authorities shall use solely electronic means in accordance with
Section 32 of these Rules.
2. For the purposes of setting up the dynamic purchasing system, contracting
authorities shall:
2.1 publish a contract notice making it clear that a dynamic purchasing
system is involved;
2.2 indicate in the specification, amongst other matters, the nature of the
purchases envisaged under that system, as well as all the necessary
information concerning the purchasing system, the electronic equipment
used and the technical connection arrangements and specifications;
2.3 offer by electronic means, on publication of the notice and up to the
expiry of the system, unrestricted, direct and full access to the specification
and to any additional documents and shall indicate in the notice the internet
address at which such documents may be consulted.
3. Contracting authorities shall give any economic operator, throughout the entire
period of the dynamic purchasing system, the possibility of submitting an indicative
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tender and of being admitted to the system under the conditions referred to in
paragraph 2 of this Section.
They shall complete evaluation within a maximum of 15 days from the date of
submission of the indicative tender. However, they may extend the evaluation
period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first
subparagraph at the earliest possible opportunity of its admittance to the dynamic
purchasing system or of the rejection of its indicative tender.
4. Each specific contract must be the subject of an invitation to tender. Before
issuing the invitation to tender, contracting authorities shall publish a simplified
contract notice inviting all interested economic operators to submit an indicative
tender, in accordance with paragraph 3, within a time limit that may not be less
than 15 days from the date on which the simplified notice was sent. Contracting
authorities may not proceed with tendering until they have completed evaluation of
all the indicative tenders received by that deadline.
5. Contracting authorities shall invite all tenderers admitted to the system to submit
a tender for each specific contract to be awarded under the system. To that end
they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on
the basis of the award criteria set out in the contract notice for the establishment of
the dynamic purchasing system. Those criteria may, if appropriate, be formulated
more precisely in the aforementioned invitation.
6. A dynamic purchasing system may not last for more than four years, except in
duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort
competition.
No charges may be billed to the interested economic operators or to parties to the
system.
3. Use of electronic auctions
1. In compliance with Article 4, Paragraph 1.20 of the PPL, the contracting
authorities in open and restricted procedures may decide that the award of a public
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contract shall be preceded by an electronic auction, when the contract specifications
can be established with precision and do not require a discretional appraisal.
In the same circumstances, an electronic auction may be held on the reopening of
competition among the parties to a framework agreement and on the opening for
competition of contracts to be awarded under the dynamic purchasing system
referred to in Section 2 of this Annex.
The electronic auction shall be based:
(i) either solely on prices when the contract is awarded to the lowest price;
or
(ii) on prices and/or on the new values of the features of the tenders
indicated in the specification when the contract is awarded to the most
economically advantageous tender.
2. Contracting authorities who decide to hold an electronic auction shall state that
fact in the contract notice.
The specifications shall include, amongst other things, the following details:
2.1 the features, the values for which will be the subject of electronic
auction, provided that such features are quantifiable and can be expressed in
figures or percentages;
2.2 Any limits on the values which may be submitted, as they result from the
specifications relating to the subject of the contract;
2.3 the information which will be made available to tenderers in the course of
the electronic auction and, where appropriate, when it will be made available
to them;
2.4 the relevant information concerning the electronic auction process;
2.5 the conditions under which the tenderers will be able to bid and, in
particular, the minimum differences which will, where appropriate, be
required when bidding;
2.6 the relevant information concerning the electronic equipment used and
the arrangements and technical specifications for connection.
3. Before proceeding with an electronic auction, contracting authorities shall make a
full initial evaluation of the tenders in accordance with the award criterion/criteria
set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited
simultaneously by electronic means to submit new prices and/or new values; the
invitation shall contain all relevant information concerning individual connection to
the electronic equipment being used and shall state the date and time of the start
of the electronic auction.
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The electronic auction may take place in a number of successive phases. The
electronic auction may not start sooner than two working days after the date on
which invitations are sent out.
4. When the contract is to be awarded on the basis of the most economically
advantageous tender, the invitation shall be accompanied by the outcome of a full
evaluation of the relevant tenderer, carried out in accordance with the weighting
provided in the tender documents.
The invitation shall also state the mathematical formula to be used in the electronic
auction to determine automatic re-rankings on the basis of the new prices and/or
new values submitted. That formula shall incorporate the weighting of all the
criteria fixed to determine the most economically advantageous tender, as indicated
in the contract notice or in the specifications; for that purpose, any ranges shall,
however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each
variant.
5. Throughout each phase of an electronic auction the contracting authorities shall
instantaneously communicate to all tenderers at least sufficient information to
enable them to ascertain their relative rankings at any moment. They may also
communicate other information concerning other prices or values submitted,
provided that that is stated in the specifications.
They may also at any time announce the number of participants in that phase of
the auction. In no case, however, may they disclose the identities of the tenderers
during any phase of an electronic auction.
6. Contracting authorities shall close an electronic auction in one or more of the
following manners:
6.1 in the invitation to take part in the auction they shall indicate the date
and time fixed in advance;
6.2 when they receive no more new prices or new values which meet the
requirements concerning minimum differences. In that event, the contracting
authorities shall state in the invitation to take part in the auction the time
which they will allow to elapse after receiving the last submission before they
close the electronic auction;
6.3 when the number of phases in the auction, fixed in the invitation to take
part in the auction, has been completed.
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7. After closing an electronic auction contracting authorities shall award the
contract on the basis of the results of the electronic auction.
8. Contracting authorities may not have improper recourse to electronic auctions
nor may they use them in such a way as to prevent, restrict or distort competition
or to change the subject-matter of the contract, as put up for tender in the
published contract notice and defined in the specification.
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