Public Procurement Law of Montenegro

(Official Gazette of MNE, no. 42/11)

 

Anti-corruption Rule

Article 15

 

A contracting authority shall reject, or refuse, a bid if it finds or reasonably suspects that a bidder has given, offered or alluded to, directly or indirectly, a gift or some other benefit to a public procurement officer, a member of the Committee for opening and evaluation of bids, a person who participated in the preparation of the contract notice, invitation to tender and tender documents, a person participating in planning the public procurement or some other person in order to influence them in order to discover confidential information or influence the contracting authority’s action.

A contracting authority shall also reject, or refuse a bid if it finds or reasonably suspects that a bidder has threatened, directly or indirectly, to a public procurement officer, a member of the Committee for opening and evaluation of bids, a person who participated in the preparation of the contract notice, invitation to tender and tender documents, a person participating in planning the public procurement or some other person in order to discover confidential information or influence the contracting authority’s action.

A contracting authority shall record cases referred to in paragraphs 1 and 2 of this Article, make an official note thereof, submit a report to the competent state authorities which will take necessary measures in accordance with the law and immediately notify the competent body.

The manner of keeping the records referred to in paragraph 3 of this Article, as well as their contents shall be determined by a regulation adopted by the state administration body in charge of financial affairs (hereinafter: the Ministry).

 

Rule of Prevention of Conflict of Interest

Article 16

Participants in the public procurement procedure shall take any necessary actions to prevent existence of a conflict of interest.

Public procurement officer, members of the Committee for opening and evaluation of bids, persons participating in preparation of the contract notice, invitation to tender and tender documents, persons participating in planning the public procurement and other persons participating, directly or indirectly, in the public procurement procedure, shall notify the contracting authority with no delay, of the actual or potential existence of a conflict of interest.

Participants in the public procurement procedure referred to in paragraph 2 of this article may not enter into employment with the bidder to whom the public procurement contract was awarded by a contracting authority with which the persons referred to in paragraph 2 of this article or the legal persons related to them were employed, for at least two years after the public contract was concluded.

The conflict of interest exists if the person referred to in paragraph 2 above:

1)    is the bidder itself, sub-contractor, the bidder’s legal representative or attorney;

2)    is a relative in the straight line of kinship, or in the lateral line of kinship up to the fourth degree, or is a marital or extra-marital mate or in-law up to the second degree, regardless of whether the marriage is terminated or not;

3)    is a guardian, adopter or adoptee of the bidder, or of his legal representative or attorney;

4)    is a shareholder or member of management bodies of the bidder;

5)    has direct or indirect interest in the public procurement procedure;

6)    is directly or indirectly involved in other circumstances causing a doubt about such person’s impartiality.

A person who has prepared the contract notice, invitation to tender and tender documents and has any impact on the implementation of the public procurement procedure may not act as a bidder or sub-contractor and may not cooperate with the bidder in preparing the bid.

The head of the contracting authority, or a responsible person of the contracting authority and the persons, who, on behalf of the contracting authority, perform some of the activities related to a public contract, shall submit a written statement on existence or non-existence of the conflict of interest referred to in paragraph 3 above.

The statement referred to in paragraph 5 of this Article shall make an integral part of the public procurement documentation.

In the case of existence of some of the cases referred to in paragraph 3 above, or if the person referred to in paragraph 5 of this Article fails to submit the statement, such person shall be excluded from the public procurement procedure.

In case that the requests or tenders that the contracting authority has received during the tendering procedure cause or may cause any conflict of interest, the contracting authority shall take necessary actions to eliminate such conflict of interest, in accordance with the law.

Prevention of the Conflict of Interest on the Side of the Bidder

Article 17

The conflict of interest on the side of the bidder or the sub-contractor exists if the authorized person of the bidder or the sub-contractor is:

1)    a legal representative or attorney of the contracting authority;

2)    a relative in the straight line of kinship of the person referred to in Article 16 paragraph 2 of this Law, or in the lateral line of kinship up to the fourth degree, or is a marital or extra-marital mate or in-law up to the second degree, regardless of whether the marriage is terminated or not;

3)    a guardian, adopter or adoptee of the person referred to in Article 16 paragraph 2 of this Law, of his legal representative or attorney;

4)    a shareholder or member of management bodies of the contracting authority;

5)    a person who has direct or indirect interest in the public procurement procedure, which enables personal acquisition of property or some other kind of benefit, by exerting influence on the decision-making process; and

6)    is directly or indirectly involved in other circumstances causing a doubt about such person’s impartiality.

A responsible person within the bidder or the sub-contractor shall submit a written statement on existence or non-existence of the cases referred to in paragraph 1 above.

The statement referred to in paragraph 2 of this Article shall make an integral part of the public procurement documentation.

In the case of existence of conflict of interest or if the responsible person of the bidder or the subcontractor fails to submit the statement referred to in paragraph 2 above, such person shall be excluded from the public procurement procedure.

Nullity of the Procedure and Keeping the Records of Conflict of Interest

Article 18

The public procurement procedure conducted with existence of conflict of interest shall be declared null and void.

The contracting authority is obliged to keep records on cases of existence of conflict of interest referred to in Articles 16 and 17 of this Law and, without any delay, to notify thereof the competent state authority.