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There are many types of procedures: Registry procedure, Open procedure (Article 40 ZJN-3), Limited procedure (Article 41 ZJN-3), Competitive dialogue (Article 42 ZJN-3), Partnership for innovation (Article 43 ZJN- 3), Competitive procedure with negotiations (Article 44 ZJN-3), Procedure with negotiations with publication (Article 45 ZJN-3), Procedure with negotiations without prior publication (Article 46 ZJN-3), Framework agreements (48. Article ZJN-3), Dynamic procurement system (Article 49 ZJN-3).
The contracting authority carries out public procurement according to the procedures from a) to f) of the first paragraph of Article 39, if the value of the object of the public procurement is equal to or greater than the threshold values, beyond which the application of the law is mandatory and if the conditions are met, which in some cases are determined for each procedure (Article 22 ZJN-3).
Open procedure (Article 40 ZJN-3)
In an open procedure, any interested business entity can submit an offer based on the public procurement notice published on the public procurement portal. It is a one-phase public procurement procedure.
The minimum deadline for receiving bids is 35 days from the date the public procurement notice was sent for publication, or 30 days if the electronic system is used for submitting bids. If, in an emergency, duly justified by the client, it is not possible to comply with the deadline of 35 or 30 days, but the client can set a deadline that is not shorter than 15 days from the date on which the public procurement notice was sent for publication. The deadline can also be shortened if the estimated value is lower than specified in Article 22 of ZJN-3.
Limited procedure (Article 41 ZJN-3)
It is a two-phase procedure, where any interested business entity can submit an application for participation based on the public procurement notice published on the public procurement portal. In the application for participation, the provider attaches information to determine the capabilities required by the contracting authority. Only economic entities whose competence is recognized by the contracting authority and invited to do so by the client can submit the offer later. The contracting authority may limit the number of suitable candidates who will be invited to submit a bid.
There is a minimum deadline for receiving applications or offers (30 days), which may not be interfered with, except in cases specified by law, such as for example in the infrastructure field and those public contracts whose value is not equal to or higher than the value, after which the public procurement must also be published in the Official Gazette of the EU. In the latter case, the contracting authority may set a shorter deadline, which, however, must take into account the general provision on the deadline from Article 74, but nevertheless be appropriate given the complexity and complexity of the public procurement and the time needed to prepare offers or applications. If, in an urgent case duly justified by the client, the 30-day deadline cannot be observed, the client can set a deadline for receiving applications that is no shorter than 15 days from the date on which the public procurement notice was sent for publication, or the deadline for receiving bids , which is not less than 10 days from the date on which the invitation to submit bids was sent to the selected candidates. The deadline for receiving bids can also be shortened if an electronic system is used for submitting bids.
Competitive dialogue (Article 42 ZJN-3)
Competitive dialogue is used restrictively in the general area, when the conditions are met, while it can always be used in the infrastructure area.
It is used in particular in cases where clients cannot identify the means to satisfy their needs or judge what the market can offer in terms of technical, financial or legal solutions. Such situations may arise especially in innovative projects, the implementation of important projects in the field of integrated transport infrastructure, projects for large computer networks or projects involving complex and structured financing. It is used for services or goods that require adaptation or design work, especially for complex procurements, for example, highly developed products, intellectual services such as certain consulting services, architectural or engineering services, or important projects in the field of information and communication technologies. For standard services or goods that can be provided by many economic operators on the market, the competitive dialogue does not apply.
The minimum deadline for receiving applications for participation is 30 days from the date the public procurement notice was sent for publication. Only economic entities invited by the client based on the evaluation of the submitted information can participate in the dialogue. The contracting authority can limit the number of suitable candidates who will be invited to the dialogue.
The public contract is awarded exclusively on the basis of the criterion of the best ratio between price and quality.
In the notice of the public procurement, the contracting authority states his needs and requirements, which he also defines in more detail in this notice or in a descriptive document. At the same time, in the same documents, it determines and defines in more detail the criteria for awarding a public contract and determines the tentative timetable.
The client starts a dialogue with the participants with the aim of identifying and defining the most appropriate ways to fulfill their needs. It must ensure equal treatment of all participants and must not provide information in a discriminatory manner.
The competitive dialogue may be carried out in successive stages, thus reducing the number of solutions discussed during each stage of the dialogue, and the contracting authority shall indicate in the contract notice or descriptive document whether it will use this option.
The dialogue continues until the client finds one or more solutions that can meet their needs. When the client concludes the dialogue and informs the participants who participated in the last stage of the dialogue about it, it invites each of them to submit a final offer based on the adopted solution or solutions that were presented and defined in more detail during the dialogue. Furthermore, the client evaluates the received offers based on the criteria for awarding a public contract (the use of which is mandatory) from the public contract notice or descriptive document. At the client's request, negotiations may be conducted with the provider that the client has determined to have submitted an offer that represents the best ratio between price and quality, in order to confirm financial obligations or other conditions from the offer by finalizing the terms of the public procurement. This must not change the essential aspects of the tender or public procurement, including the needs and requirements of the public procurement notice or descriptive document, and pose risks of distortion of competition or discrimination.
Partnership for innovation (Article 43 ZJN-3)
It is a public procurement procedure that is used when the solutions that already exist on the market cannot satisfy the need for the development of an innovative product, service or construction, and the aim of this procedure is the subsequent procurement of goods, services or constructions that are the result of innovative development . It allows a long-term innovation partnership to be concluded for the development and subsequent procurement of a new, innovative product, service or construction, if this innovative product, service or construction can be provided in accordance with the agreed quality of execution and the agreed costs, without being for procurement a separate procurement process is required.
Public contracts are awarded exclusively on the basis of the best price-quality ratio, which is most suitable for comparing offers for innovative solutions. For very large or smaller innovation projects, the Innovation Partnership is structured in such a way as to ensure the necessary market demand to stimulate the development of an innovative solution without foreclosing the market. Contracting authorities must therefore not use innovation partnerships in a way that prevents, restricts or distorts competition.
The minimum deadline for receiving applications for participation is 30 days from the date the public procurement notice is sent for publication, and in the infrastructure field, as a rule, at least 30 days from the date the public procurement notice is sent for publication, but in no case it must not be shorter than 15 days.
Only economic entities invited by the client based on the evaluation of the submitted information can participate in the procedure. The contracting authority may limit the number of eligible candidates to be invited to the innovation partnership.
Competitive procedure with negotiations (Article 44 ZJN-3)
The competitive procedure with negotiations can be used only in the general area, taking into account the conditions defined in Article 44 of the ZJN-3, and it is carried out as a two-phase procedure, except in the case from point b) of the first paragraph of Article 44 of the ZJN-3, where it is carried out just the second stage of the process.
When the contracting authority awards a public contract through a competitive negotiated procedure on the basis of a failed preliminary procedure (open, limited or low-value procurement procedure) in which the tenders submitted were inconsistent with the documentation relating to the award of the public contract or were late or unusually low, or the tenders of the tenderers , who are not properly qualified, or offers whose price exceeds the client's guaranteed funds (b) point of the first paragraph of Article 44 ZJN-3), the client does not have to publish a public procurement notice if he includes in the process all providers who meet the conditions for participation and there are no grounds for exclusion for them and they have submitted bids in accordance with the formal requirements for the public procurement procedure in a previously conducted open or restricted or low-value procurement procedure. You can also find more about this in the interpretation entitled Competitive procedure with negotiations..
ZJN-3 does not contain provisions that would regulate the negotiation protocol more precisely, but clients can provide for it in their internal act. With the protocol, which may differ from negotiation to negotiation, it is necessary to familiarize the providers with whom the client intends to negotiate. The law also does not specify how the client must draw up the minutes of the negotiations and what their content should be. Negotiations must be aimed at improving the offers, so that clients can order constructions, goods or services completely adapted to their specific needs. They may concern all features of the ordered works, goods and services, including, for example, quality, quantity, commercial clauses and social, environmental and innovation aspects, if they are not part of the minimum requirements. Negotiations must take place in such a way that the fundamental principles of public procurement are ensured, especially the equal and non-discriminatory treatment of all providers.
A negotiated competitive process may be conducted in successive stages to reduce the number of tenders being negotiated based on the procurement criteria set out in the procurement notice or other procurement document. In the public procurement notice or other document related to the awarding of the public procurement, the contracting authority indicates whether it will use this option.
The minimum requirements to be determined by the contracting authority are those conditions and characteristics (in particular physical, functional and legal) that each offer should meet or have in order to ensure that the contracting authority can award the public contract in accordance with the selected award criteria orders. All stages of the process must be properly documented to ensure transparency and traceability.
Negotiation procedure with publication (Article 45 ZJN-3)
The negotiated procedure with publication can only be used in the infrastructure sector and means a procedure based on a published invitation to participate in which all interested economic entities can participate. The first offer can only be submitted by economic entities that are invited by the client based on the evaluation of the information provided. The client may limit the number of suitable candidates who will be invited to submit a bid. Negotiations are a mandatory element of this process. The client negotiates with those who meet the conditions required in the documentation. Negotiations must take place in such a way that the fundamental principles of public procurement are ensured, especially the equal and non-discriminatory treatment of all providers.
Negotiated procedure without prior publication (Article 46 ZJN-3)
It is a process that includes negotiations, but only those entities invited by the client participate in it. It is applicable exclusively in cases specified by law. These are cases related to: market conditions – the customer does not receive any offers or they are inadequate; specifics related to the nature of the object of the order – technical, artistic or the existence of copyright; a circumstance that is objectively unforeseeable for the client and consequently necessarily requires the execution of a specific order. In the above mentioned case, it concerns cases that can be common to the ordering of goods as well as services and works. There are specific examples of the negotiated procedure without prior publication, specific to individual types of orders.
In the case of a negotiated procedure on the basis of point č) of the first paragraph of Article 46 of the ZJN-3, the extreme urgency of carrying out the public procurement procedure and the unpredictability of events must be cumulatively met and causally related and must not occur due to the omission of certain actions by the contracting authority that he should have performed, such as proper timely planning and implementation of certain activities, etc. The reason for the urgency defined by the law is to be sought primarily in the protection of the health and safety of people as well as the insurance of property and the prevention of circumstances that would lead to disproportionate consequences for the performance of the client due to the non-execution of the public contract. Of course, this does not mean that necessity is expressed only in the cases mentioned, but the reason for necessity must be interpreted restrictively.
If the contracting authority carries out a negotiated procedure without prior publication due to reasons of extreme urgency, in cases where this is objectively possible, it must submit works, goods or services according to this procedure only for the time until the conclusion of the contract on the execution of the public procurement according to the implemented transparent procedure, which for construction, it must start no later than 90 days from the finality of the decision on awarding the order, and for goods and services no later than 30 days from the finality of the decision on awarding the order.
In its documentation, the contracting authority must state and explain the reasons for choosing the procedure from Article 46 of the ZJN-3, and before starting the procedure (Article 66 of the ZJN-3), forward the intention to implement and the explanation to all three defenders of the public interest, as defined by the law, which governs legal protection in the field of public procurement, while notification of the intended implementation of the procedure does not mean that the defender of the public interest is aware of the violation and does not affect the running of the time limits, as set for defenders of the public interest by the law that regulates legal protection in public procurement procedures. An exception to the above applies when this procedure is used for reasons of extreme urgency, whereby the client does not need to send the intention to carry out the procedure and the justification to the defenders of the public interest. ZJN-3 does not specify the method of informing defenders of the public interest, and this is left to the client's discretion.
The defenders of the public interest are the Audit Court of the Republic of Slovenia, the Public Agency of the Republic of Slovenia for the Protection of Competition and the Commission for the Prevention of Corruption.
In the event that the contracting authority awards a public contract on the basis of points a) and d) of the first paragraph of Article 46 of the ZJN-3, it must, if appropriate, include several bidders in the negotiation process.
In the case of a negotiated procedure without prior publication, the voluntary prior transparency notice must be published before the public procurement decision is published. The exception applies to procedures that are carried out for reasons of extreme urgency (i.e. point č) of the first paragraph of Article 46 of the ZJN-3), where the contracting authority may decide to serve the decision in accordance with the Act on General Administrative Procedure (Official Gazette of the Republic of Slovenia, No. 24) /06 – official consolidated text, 105/06 – ZUS-1, 126/07, 65/08, 8/10, 82/13 and 175/20 – ZIUOPDVE; hereinafter: ZUP) and also sends a notification for publication on the same day from Article 57 of the ZJN-3), or a voluntary notification for preliminary transparency is published before the decision on the submission is published.
ZJN-3 does not contain provisions that would regulate the negotiation protocol more precisely, but clients can provide for it in their internal act. The provider or providers with whom the client intends to negotiate must also be informed of the protocol, which may differ from negotiation to negotiation. The law also does not specify how the client must draw up the minutes of the negotiations and what their content should be.
Framework agreements (Article 48 ZJN-3)
ZJN-3 defines a framework agreement in the second paragraph of Article 48, as follows: "A framework agreement means an agreement between one or more clients and one or more economic entities, the subject of which is the determination of the conditions governing the orders that are placed in an individual period, in particular in relation to the price and, where applicable, the estimated quantity."
In accordance with Article 48 of ZJN-3, the contracting authority may enter into a framework agreement on the basis of a previously implemented public procurement procedure (namely, any).
ZJN-3 divides framework agreements into 4 types:
This information determines the type of framework agreement. It depends on this, which rules regarding the submission of individual orders must be followed after the conclusion of the framework agreement.
A framework agreement represents an effective procurement technique, but contracting authorities may not use framework agreements in which they are not themselves listed. For this purpose, the clients, signatories of a certain framework agreement, must be clearly indicated from the very beginning, namely by name or otherwise, for example by mentioning a specific category of clients in a clearly defined geographical area, so that these clients can be identified simply and unambiguously . Once concluded, the framework agreement must also not be open to the participation of new economic entities.
After the conclusion of the framework agreement, the client places individual orders in accordance with the sixth or seventh paragraph of Article 48 of ZJN-3. Individual orders can only be submitted to one of the providers with whom the client has entered into a framework agreement. When submitting individual orders, the parties may not significantly change the terms of the concluded framework agreement.
The validity of the framework agreement is limited to a maximum of four years (eight years in the infrastructure field), a longer period is possible only in exceptional cases. Such cases, which should be properly justified, especially with the subject of the framework agreement, may arise, for example, when an economic entity needs equipment whose depreciation period is longer than four years and must be available at any time during the entire duration of the framework agreement .
More about framework agreements is available at the link in the interpretation entitled: Conclusion and implementation of the framework agreement. Here, however, it must be taken into account that the interpretation is based on ZJN-3 before its amendment, so we additionally clarify that the contracting authority must publish a notice of the award of the order when the public procurement process for selecting the parties to the framework agreement is completed, but when implementing the framework agreement, he for each individual order (opening of competition) it is not necessary to collect data and publish notices on the Public Procurement Portal, as the amendment to the ZJN-3B for framework agreements abolishes each time or quarterly reporting on the implementation of the framework agreement.
Regarding the publication of decisions on the awarding of individual orders from the concluded framework agreement (i.e. opening of competition), paragraph 12 of Article 90 of the ZJN-3 clearly defines that Article 90 of the ZJN-3 also applies mutatis mutandis to individual orders from Article 48 of the ZJN-3 , except for the method of notification of the decision taken, where the client, when the value of an individual contract is lower than the value from which the public contract must be sent for publication to the Publications Office of the European Union, can specify a different method of notification in the documentation related to the award of the public contract on the decision to award an individual public contract.
If the above-mentioned condition is met, the customer can specify a different method of notification in the tender documentation about the decision to place an individual order, and can freely choose any (written) method of notification about the decision (e.g. mail, e-mail, information system, etc.) . The content of the decision is determined in the third paragraph of Article 90 of the ZJN-3.
In the case of framework agreements concluded before April 2, 2023, the contracting authority must continue to publish decisions on the awarding of individual orders on the public procurement portal, which follows from Article 9 of the transitional provisions of the amendment ZJN-3D, where it is stipulated that procedures for awarding public orders, for which public procurement notices were sent for publication before the entry into force of this law, are carried out according to the existing regulations. The above also means that the obligation from paragraph 12 of Article 90 of ZJN-3 does not apply to existing contracts that are being implemented, but to orders started from 04/02/2023 onwards.
Recorded public procurement
The use of the provisions of the Regulation on green JN is not mandatory for registered public procurement. However, clients can nevertheless use the rules of green and circular ordering even for registered orders. It is also common to see the procurement of eco-food and food from the quality scheme in registered food orders, and of course the use of selected groups for the purchase of food from local farmers (short chains), which means the purchase of food with a lower carbon footprint, etc. The review of the internal regulations on record-based public procurement should also be done taking into account the potential of record-based public procurement as a tool for achieving and promoting the principles of a circular economy.
Dynamic purchasing system (Article 49 ZJN-3)
The dynamic purchasing system (hereinafter: DPS) operates according to the rules of a limited procedure. The limited procedure takes place in two separate stages or phases – receiving applications for cooperation (first phase) and receiving offers (second phase). In the first phase, the providers attach to the application for participation information to determine the capabilities required by the client. With DPS, the first phase is just the procedure for setting up DPS. In the second phase, which takes place several times, bids can be submitted later only by economic entities that, based on the assessment of the information submitted in the application, have been included in the catalog of providers by the client (in this case, candidates can also be included in the established catalog of providers later, based on later submitted applications). Therefore, with the establishment of the catalog of providers, the period of duration of the public procurement with the establishment of the DPS begins.
DPS can be divided into categories of products, works or services, which are objectively defined by the client based on the characteristics of public procurement, which will take place within the framework of the relevant category (first paragraph of Article 49 of ZJN-3). The customer may use DPS for normal purchases with characteristics that, as generally available on the market, meet his requirements. It is a so-called "off the shelf" products. DPS is a suitable ordering technique for e.g. delivery of food, computer equipment, plane tickets, medicines, etc.
In the case of a dynamic procurement system (as opposed to the publication of decisions on the award of individual orders from a concluded framework agreement), the client must publish all decisions on the award of individual orders from the established dynamic procurement system on the public procurement portal.
You can read more about DPS in the section Answers to DPS questions.
Na našem spletnem mestu za zagotavljanje najboljše uporabniške izkušnje uporabljamo piškotke. Preberi več