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PUBLIC PROCUREMENT REGULATION

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 1Scope 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 2Calculating 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 point of view of the most efficient, cost-effective, and transparent and fair use of public funds and resources.

Public Procurement Rules 1

http://www.krpp.rks-gov.net/

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.

7. In cases where there are differences according to a decision of a competent body, in taxes, the VAT rate or changes in import duties, contract prices shall be adjusted accordingly. 8. Contracting Authorities are not allowed to terminate ongoing contracts and contracts for work or supplies, services and payments, when the changes were not known, as in the cases referred to under paragraph 7 of this Section.


Section 3Classifying a public contract or a design contest by estimated value

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. Large value contract,2. Medium value contract,3. Low value contract,4. 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 4Procurement 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 services4. for Design contest,5. for Works,6. for Works concession.


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. for Open procedure,2. for Restricted procedure,3. for Design contest,4. for Negotiated procedure after publication of a contract notice,5. for Negotiated procedure without publication of a contract notice,6. for Price quotation procedure,7. for Procedure for minimal value contracts.

Section 5Summary 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 7Technical specifications


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 8Selection 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 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

1.2 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.

Section 9Documentary 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 as regards Article 65, paragraphs 1.1 and 1.2 of the PPL, under oath declaration signed by the concerned economic operator;

1.2 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;

1.3 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.

1.4 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;

1.5 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 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 10Documentary 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 11Documentary 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 12Groups of economic operators

1. In pursuance of Article 71 of the PPL, a tender may be submitted by a group of economic operators.

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 13Acceptable instruments for tender and performance security

1. If such activity is divided into parts (Lots) and if deposit of tender security is required, the amount of required security shall be not less than three percent (3%) and not more than five percent (5%) of the foreseen value of public contract or design contest or part (Lot), for which economic operator tenders, but however, in no case it shall not be less than thousand (1.000) euros.

2. 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.

3. 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 14Forfeiture 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:

1.1 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;


1.2 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 15Tender 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 16Establishment 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”).

2. The following principles shall form basis for establishing and functioning of such Committee:

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 responsible procurement officer may not serve as a member of the evaluation committee. The responsible 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. Persons who have been members of the bid opening committee may not be members of the evaluation committee.

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.

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. In such cases the Procurement Officer shall take a final decision for the contract award, or shall form a new committee for re-assessment with the similar procedure. 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.

2.12 If the Procurement Officer is aware that while conducting the procurement activity or award of the contract there was one or more violation of the LPP, he/she shall not sign the contract. If however the Procurement Officer sign the contract, the Procurement Officer and all other persons who have participated in or encouraged the violation are individually fully accountable for the violation. Moreover, any person who exercises any influence on the Procurement Officer or the employee of the Procurement Department, or otherwise affects the procurement activity takes full individual responsibility if the impact has encouraged the violation of the law.

Section 17Examination, 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 tenderers or awarding of a contract does not mean a change in the initial result.

4. The procedure for evaluating and comparing tenders and award of contracts, as provided in Section 17 shall be completed by the contracting authority within the shortest possible time and no later than 30 calendar days from the opening of the tender, as provided in Section 17 paragraph 4 of this regulation. Only in exceptional and well justified cases, especially with contracts of a complex nature, this period may be extended for an additional period of 15 calendar days. Assessment period begins immediately after the opening procedure but no later than 96 hours from the date of tender opening.

Section 18

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 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.

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 20Tender forms and submission of tenders

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 21Open 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 22One envelope and two envelope system

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


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 24Arithmetic 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.

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.


Section 25Abnormally 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 26Quantities 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 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 27Prices

1. Prices stated in tenders and subsequent prices in awarded contracts are fixed-prices 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 by other authorized international institutions. The price-index must be specified in the tender dossier.

Section 28Subcontracting

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.

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 29Contract 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.

Section 30Training 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; and1.3 any other persons

2. KIPA in cooperation with PPRC, decides how many persons under the sub- paragraph 1.3 can be accommodated on the training, as KIPA in advance approves a regulation where are specified the conditions for attending the training. The notice 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 have a certain number of persons and 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.

4. KIPA establishes fees to be paid by each person 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 additional 30% from that calculated amount to cover fixed costs.

5. Payments for training material for the persons mentioned under sub-paragraph 1.3 may only be set as covering the costs of producing the material for the participants.

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. Selection of these persons is made by KIPA in cooperation with PPRC.

7. Persons who possess a certificate or an advanced degree or internationally recognized master in procurement are exempted from liability for certification from KIPA as defined in paragraphs 4 and 5 of Article 25 of the LPP. However, these persons are obliged to participate in an ongoing training specified in paragraph 1 of Article 25 of the LPP. Certificate or an advanced degree is considered, a certificate or advanced degree, which a candidate has, and which is acquired in a licensed educational institution, inside or outside Kosovo, if the educational program is based on the EC Procurement Directives, as well as best international practices, have lasted minimum 15 days, and at the end the candidate is subject to examination and has completed it successfully. Master degree in public


procurement is considered a diploma which was obtained in a licensed educational institution inside or outside Kosovo, and that belongs to public procurement field.

8. KIPA in corporation with PPRC decides:

(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 15 days within three years;

(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 days within three years.

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 LPP, PRB may proceed to the revocation of the Procurement Professional Certificate on request from PPRC, where PPRC, according to Article 87, Paragraph 2.4 of the LPP, has evidence that the conditions required under Articles 32, Paragraph 4, and 35 of the PPL have been violated.

Section 31Public Service Operators

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 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 32Use 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.

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;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, sub-paragraph 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 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 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.


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.

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.

Part of the Public Procurement Regulation is considered also the OPERATIONAL MANUAL on PUBLIC PROCUREMENT, as secondary legislation, which is published in addition to this Regulation.

Enters into force on: 01.02.2012


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