Public procurement regulation in Croatia

October 2018

All notifications and related procurement documents are accessible online through a centralized electronic public procurement system operated by the National Gazette – the Electronic Public Procurement Classifieds of the Republic of Croatia (EOJN) available via https://eojn.nn.hr/Oglasnik/.

• The contracting authority is free to choose between the open or the restricted procedure.

• Contracting authorities can apply a competitive procedure with negotiation or a competitive dialogue in the following situations:
  • the needs of the contracting authority cannot be met without adapting readily available solutions; or
  • they include design or innovative solutions; or
  • the contract cannot be awarded without prior negotiations because of specific circumstances related to its nature, complexity or legal and financial make-up, or because of the risks attaching to them; or
  • the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European technical assessment, common technical specification or technical reference; or
  • in the previously conducted open or restricted procedure all bids were irregular or inadmissible.

• Contracting authorities may apply a negotiated procedure without prior publication for public works contracts, public supply contracts and public service contracts in the following situations:
  • where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered.
  • where the works, supplies or services can only be supplied by a particular economic operator for any of the following reasons:
    1. the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
    2. competition is absent for technical reasons;
    3. the protection of exclusive rights, including intellectual property rights.
  • in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the authority cannot comply with the time limits for the open or restricted procedures or competitive procedures with negotiation. The circumstances invoked to justify extreme urgency cannot in any event be attributable to the contracting authority.
• Contracting authorities may apply the negotiated procedure without prior publication for public supply contracts in the following situations:
  • where the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point must not include quantity production to establish commercial viability or to recover research and development costs;
  • for additional deliveries by the original supplier that are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority to acquire supplies with different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts must not, as a general rule, exceed three years;
  • for supplies quoted and purchased on a commodity market;
  • for supplies or services purchased at particularly advantageous terms, from either a supplier definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.

• The negotiated procedure without prior publication may be used for public service contracts in the following situations:
  • where the contract concerned follows a design contest and is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations;
  • for new services consisting in the repetition of similar services entrusted to the economic operator to which the same contracting authorities awarded an original contract, provided that:
    1. such services conform with the basic project for which the original contract was awarded pursuant to a procedure;
    2. the original contract was concluded based on procurement procedure;
    3. the basic project indicates the extent of possible additional services and the conditions under which they will be awarded;
    4. the invitation to tender for the original contract envisaged the option of using this procedure;
    5. the total estimated cost of subsequent services is taken into consideration when estimating the tender value of the original contract;
    6. this procedure may only be used for three years following the conclusion of the original contract.

• The negotiated procedure without prior publication may be used for public works contracts for new works consisting of the repetition of similar works entrusted to the economic operator the contracting authority awarded an original contract, provided that:
  • such services conform with the basic project for which the original contract was awarded pursuant to a procedure;
  • original contract was concluded based on procurement procedure;
  • the basic project indicates the extent of possible additional services and the conditions under which they will be awarded;
  • the invitation to tender for the original contract envisaged the option of using this procedure;
  • the total estimated cost of subsequent services is taken into consideration when estimating the tender value of the original contract;
  • this procedure may only be used for three years following the conclusion of the original contract.

An appeal is possible against:

• provisions of the invitation to tender or procurement documents and their amendments and modifications;
• failure of the contracting authority to duly respond to a timely request for additional information, explanations or modification of the procurement documents and opening of tenders;
• a contract award decision;
• a decision on annulment of the procurement procedure.

Appeal must be submitted within 10 days of:

• the publication of invitation to tender or procurement documents;
• the publication of amendments and modifications to the invitation to tender or procurement documents;
• the opening of tenders;
• receiving the contract award decision or decision on annulment of the procurement procedure.

Further appeals are precluded after the expiry of the subject limits.

The standstill period starts with the receipt of the award decision by the tenderers and expires 15 days after it. No standstill period applies if only one tenderer participated in the procedure and was selected, in case the public procurement contracts concluded are based on a framework agreement and in case of a dynamic purchase system.

Appeals shall be filed with the State Commission for the Supervision of Public Procurement Procedures (Croatian: Državna komisija za kontrolu postupaka javne nabave – DKOM). Its decisions are subject to review by the High Administrative Court in the final instance.

The fees for filing an appeal before the State Commission for the Supervision of Public Procurement Procedures amount to approx.:

• EUR 667 for estimated procurement value up to EUR 100,000;
• EUR 1,334 for estimated procurement value from EUR 100,000.00 to EUR 200,000;
• EUR 3,334 for estimated procurement value from EUR 200,000.00 to EUR 1,000,000;
• EUR 6,000 for estimated procurement value from EUR 1,000,000.00 to EUR 3,333,333;
• EUR 9,333 for estimated procurement value from EUR 3,333,333.00 to EUR 8,000,000;
• EUR 13,333 for estimated value procurement exceeding EUR 8,000,000.

The fee for filing an appeal against procurement documentation or if the estimated value of the procurement is unknown at the time of filling the appeal amounts to approx. EUR 667.

In most cases appeal leads to suspension (e.g. appeal against an award decision, procurement documentation, modification of documentation, decision on inadmissibility of participation, decision rejecting an initial bid, refusal of a decision, decision on selection; notice of voluntary ex ante transparency). In such cases, the contracting authority can request continuation of the procurement procedure / conclusion of the public procurement contract or framework agreement.

Appeals against any other decisions taken in the course of the procedures do not have a suspensive effect unless interim measures are requested and permitted.

The State Commission for the Supervision of Public Procurement Procedures will annul a procurement contract or a framework agreement if the contracting authority concluded:

• a public procurement contract or a framework agreement without a prior public procurement procedure;
• a public procurement contract or a framework agreement during a standstill period;
• a public procurement contract or a framework agreement during a suspended appeal procedure;
• a public procurement contract or a framework agreement during an interim measure prohibiting conclusion of the contract;
• a contract based on a framework agreement contrary to the rules on awarding based on a framework agreement;
• a contract has been signed contrary to the rules on awarding in a dynamic purchase system.

The State Commission for the Supervision of Public Procurement Procedures will impose a fine on the contracting authority in the amount of 10 to 20% of the contract value.

Contracts and framework agreements may be modified without a new procurement procedure, only in accordance with the following provisions:

• the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options;
• for additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial procurement, where a change of contractor (i) cannot be made for economic or technical reasons and (ii) would cause significant inconvenience or substantial cost duplication for the contracting authority;
• the need for modification has been brought about by circumstances that a diligent contracting authority could not foresee, the modification does not alter the overall nature of the contract and any increase in price is not higher than 30% of the value of the original contract / framework agreement;
• a new contractor replaces the one to which the contracting authority initially awarded the contract as a consequence of either (i) an unequivocal review clause or option provided for in the initial procurement documents; (ii) universal or partial succession into the position of the initial contractor—following corporate restructuring, including takeover, merger, acquisition or insolvency—of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the law; or (iii) in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors;
• the modifications, irrespective of their value, are not substantial (substantial modifications are defined under the law);
• the value of the modification (i) does not exceed the threshold amounts in Article 4 of the Directive 2014/24, (ii) does not exceed 10% of initial goods or services contract value / 15% of initial works contract value, and (iii) does not alter the overall nature of the contract.

E-procurement in Croatia was fully implemented on 18 April 2018, when the use of e-ESPD became mandatory. Use of e-Certis became mandatory on 18 October 2018. The electronic submission of tenders has been mandatory in Croatia since 1 January 2016. Currently Croatia has one centralised electronic public procurement system operated by the National Gazette – the Electronic Public Procurement Classifieds of the Republic of Croatia (EOJN). Private entities are not allowed to operate e-procurement systems.

Contracting authorities may require tenderers to use e-signatures (e.g. to sign the ESPD) and they are obliged to accept advanced electronic signatures with a qualified certificate. However, bids submitted through EOJN are binding regardless of whether they are signed, so authorities may not reject a bid solely because it lacks an e-signature.