An amendment to prevent procurement for EXPO 2027 from being conducted without applying the Law on Public Procurement

Transparency Serbia has submitted to parliamentary groups in the Parliament of Serbia a proposal for an amendment to the Special Law on EXPO 2027 that would remove one of the significant corruption risks by obliging the special companies that will be formed for the implementation of the project to apply the Law on Public Procurement.

In the meantime, the Government itself proposed an amendment, which became an integral part of the law, stipulating that instead of special companies, the government "regulates more closely the procurement procedure rules" and "the obligation to ensure the transparency of the procedure". However, the provision that repeals the Law on Public Procurement remains.

The TS amendment provides for the deletion of the position on regulation of procedures and for a stipulation that "a special business company, as well as a special purpose vehicle, is considered a public contracting authority in the sense of the law regulating public procurement".

Instead of deleting the entire article, such wording would also avoid the possibility of another corruption risk, i.e. that through a harmful interpretation of the norm or changes in the structure of ownership and management of special companies, they would come to a situation where they would no longer be considered legal entities that are obliged to apply the Law on Public Procurement.

In a proposal sent to MPs, TS pointed out the proposed provision's unconstitutionality after the Government's amendment intervention. Namely, for the Government to be able to "regulate more closely" the rules of the procurement procedure, the condition is that the procedure is somehow, in general terms, already regulated by law. Since the Bill excludes the application of the Law on Public Procurement, there are no rules that the Government could elaborate through a by-law. Thus, by decree, the Government would, in fact, create rules for the implementation of procurement of newly established companies and would not regulate them more closely.

TS also pointed out that even if it is positively assumed that the Government will regulate the procurement of special companies in the best possible way, there would be an irreparable problem. Namely, if special companies foresee unjustifiably discriminatory conditions and criteria in tender documents for procurement procedures or if the otherwise good procedure is violated in any way, there would be no legal possibility to contest such procurements before any state authority responsible for public procurement.

In its memo, TS pointed out that the Government of Serbia did not even try to justify the cancellation of public procurement for works for this valuable project in the explanation of the Bill. Not even the urgency of implementation, cited as a reason for deviating from the application of certain provisions of other regulations, would not be a valid reason, because the Law on Public Procurement allows shortening of deadlines and deviating from general rules when justified.

TS directs attention to the MPs that when proposing the law, the Government violated the obligation to submit the draft law to the Agency for the Prevention of Corruption to determine the risks of corruption. Also, it violated the obligation to include the public in preparing regulations – no public discussion was conducted.

In addition to the amendment, the TS sent the MPs a proposal that the National Assembly ask the Government of Serbia to supplement the explanation on all the deficient points of the Draft Law so that it could be reasonable to discuss whether it is justified to pass a special law for this project. If no explanation comes or is incomplete, TS suggests that MPs not support the Bill.

TS also suggested that the National Assembly ask the Agency for the Prevention of Corruption for an opinion on the risks of corruption in the law.

Also, the TS proposed to the MPs that the National Assembly ask the Government for information on what legal basis and with what explanation the competent Government committee concluded that there is no obligation to organise a public hearing while preparing this law. If such a conclusion was not made, or the proposal was not explained, or the explanation does not contain convincing arguments, TS suggests the National Assembly ask the Government to eliminate these shortcomings by withdrawing the Bill from the procedure and organising a public hearing, according to the TS memo to all parliamentary groups.