Montenegro

October 2018

1. Where can one find public procurement notifications for Montenegro?

2. Which are the relevant thresholds for the applicability of the Montenegro Public Procurement Act?

The Public Procurement Act (“Official Gazette of Montenegro”, nos. 42/11, 57/14, 28/15 and 42/17) (hereinafter the “PPA”) is applicable to public procurement contracts if their value equals or exceeds the following thresholds:

  • for supply contracts: EUR 25,000;
  • for services contracts: EUR 25,000;
  • for public works contracts: EUR 30,000.

For procurements whose value is below these thresholds (“low-value public procurements”), the contracting authority need not apply the PPA. The procedures for low-value public procurement are determined by the relevant contracting authority’s internal acts and by respecting PPA principles.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?

  • The contracting authority is free to choose among the open and the restricted procedure.
  • A negotiated procedure can be carried out with or without an announcement of a public call for offers (art. 24 and 25 of the PPA).
    • A negotiated procedure with prior publication may be used (art. 24 of the PPA):
      • if none of the offers received in the open procedure or in the second phase of restrictive procedure is acceptable, provided that the originally defined public procurement object and the contents of the tender documents have not been altered;
      • in exceptional cases where, due to the nature of the goods or services or due to associated risks, it is not possible to predict the value of the procurement; and
      • for the purposes of research, testing or development, without making of any profit or compensation for the expenses incurred.
    • A negotiated procedure without the announcement of a public call may be used (art. 25 of the PPA):
      • for procurement of goods, services or works:
        • when no offers were submitted in two previously conducted open or restrictive public procurement procedures, provided that the initial requirements of the tender documentation have not been altered, in which case the contracting authority must include in the negotiated procedure all the tenderers who submitted their bids in the open or restricted procedure;
        • when due to technical or artistic reasons, i.e. for reasons related to protection of exclusive rights (patents and the like), the contract can only be carried by a specific economic operator;
      • for the procurement of goods when:
        • the products involved are manufactured purely for the purpose of research, experimentation, study or development (but not for the development of goods in mass production where the expenses of the research and development may be recoverable);
        • in cases when the contracting authority has to procure additional deliveries from the original contractor for the purpose of the partial replacement of common goods, installations or the extension of the existing goods or installations, where the change of the tenderer would oblige the contracting authority to purchase material with different technical characteristics that would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of the additional procurements may not exceed 15% of the amount of the basic contract;
        • in case of the public procurement of goods traded in commodity markets;
        • goods which are procured under particularly favorable terms from a tenderer winding-up its business activities (liquidation or bankruptcy), or from a bankruptcy administrator or liquidator upon a prior agreement with the creditors;
      • in case of services that are part of the extension of the services performed under a design contest in which the contract is awarded to the successful candidate or to one of the successful candidates, under the condition that all successful candidates are invited to participate in the negotiations;
      • in case of public works contracts and public service contracts:
        • for additional works or services not included in the signed public procurement contract but which, due to unforeseen circumstances, have become necessary for the performance of the agreed works or services, on condition that the award is made to the economic operator performing such works or services:
          1. when such additional works or services cannot be technically or economically separated from the signed public procurement contract without serious inconvenience to the contracting authorities, or when such works or services, although separable from the performance of the signed public procurement contract, are strictly necessary for its completion.
          2. the aggregate value of contracts awarded for additional works or services does not exceed 15 % of the amount of the original contract;
        • in case of new services consisting in the repetition of similar services already entrusted to the economic operator to whom the same contracting authorities awarded an original contract, provided that such services are in conformity with a basic project for which the original contract was awarded according to an open or restricted procedure. The length of the additional procurements may not exceed three years after the day on which the basic contract is completed, and their value may not exceed 15% of the amount of the basic contract;
  • the design contest is a procedure that enables a contracting authority to procure a plan or design selected by an independent jury. The PPA specifies the use of the design contest procedure in the fields of urban planning, architecture, construction design, engineering, science, culture, design or data processing (art. 28 of the PPA). The design contest procedure could take place as an individual public procurement for services or as the part of another public procurement for services. The contract derived from a design contest must be concluded with the winner or one of the winners of the contest.

4. Which decisions of a contracting authority can be appealed?

An appeal can be submitted any time during the entire procurement procedure, against any decision reached by the contracting authority, unless the PPA stipulates otherwise (art. 120 of the PPA).

5. Which time limits exist for appeals? Are further appeals precluded after these limits?

  • For infringement relating to the tender documentation (i.e. the content of tender documents, manner of publication or delivery of tender documents, amendments and clarification of tender documents, failure to provide clarification of tender documents):
    • at least ten (10) days before the deadline for submitting bids;
  • For infringement related to decisions on: (i) selecting the most favorable bidder; (ii) terminating the public procurement procedure; and (iii) cancelling the public procurement procedure:
    • ten (10) days from the receipt of the respective decision;

6. How long is the standstill period?

The contracting authority may only conclude the procurement contract after deadlines prescribed for submitting appeals or, if the appeal is filed, upon rejection of the appeal (art. 124 of the PPA).

7. Which are the review bodies?

The State Commission for the Control of Public Procurements (“Državna komisija za kontrolu postupaka javnih nabavki”) (hereinafter the “Commission”) decides on appeals filed against contracting authority decisions on the award of a contract. Appealing against a Commission decision involves initiating an administrative dispute before the Administrative Court.

8. Are there filing fees for an appeal?

Yes. The filing fee is 1% of the estimated value of the public procurement, but is capped at EUR 20,000.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

The appeal has an immediate suspensive effect. It prevents the contracting authority from undertaking any further activities until a decision on the appeal has been reached (art. 124 of the PPA). As an exception to this rule, upon a request of the contracting authority, the State Commission can approve the continuation of the procedure for awarding the public procurement in the following cases (art. 124 of the PPA):

  • where the delay caused by a suspension would result in significant damage to the contracting authority’s ability to carry out its business activities when such damage is disproportional to the value of the public procurement;
  • where the delay caused by the suspension would significantly jeopardize Montenegrin interests;
  • in the negotiated procedure without the announcement of a public call, where this procedure follows a design contest (art. 25 para. 1 under point 1, item 3 of the PPA);

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

Montenegro is not yet an EU member state, therefore none of the EU directives apply directly to Montenegrin citizens and entities. However, it appears that the PPA is not harmonized with the EU directive 66/2007/EC.

11. Can procurement contracts be amended after signing?

The modification of public procurement contracts during their term is not regulated under the PPA. Strictly speaking, the modification of procurement contracts during their term would not be allowed.

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

The use of e-procurement or e-signatures is voluntary under the PPA.

Authors

Picture of Srdjan Jankovic
Srđan Janković
Attorney-at-Law
Picture of Tamara Samardzija
Tamara Samardžija
Attorney-at-Law