This policy memo aims to point to some of the key weaknesses in the legal framework which regulates legal protection in public procurement procedures in BiH and, on the other hand, offers recommendations in a sense of overcoming the observed weaknesses.
According to the Law on Public Procurement BiH (LLP), any participant in the public procurement procedure in BiH, who finds that that decision brought by a contracting authority violates their rights and legal interests, has a right to appeal. Nevertheless, some normative solutions regarding the possibility of resorting to those mechanisms and procedures show a deviation from European law since they fail to sufficiently ensure legality, legal safety, predictability and transparency, and consequently, they do not provide the necessary guarantees in respect of availability and efficiency of legal protection.
Among other things, public authorities do not have the legal capacity in the legal protection procedure, since the procedure depends only on the initiative of the economic operator. Yet, public procurement procedures, beside private ones, have implications for the public interest, and it is necessary that the approach to the legal remedies in this domain be provided to those public authorities, such as Prosecutor's Office of BiH and the Council of Competition, which guarantee the implementation of the law and protect public interest. Also, LPP does not contain precise provisions on the cost compensation of the review procedure, which should be one of the competences of the Procurement Review Body (PRB). Deficiencies and vague wording of the LPP are evident regarding the status of the PRB. Taking into consideration that this entity decides on appeals and due to the importance of this work, it would be preferable to define the status of this entity by a special law, which would, inter alia, regulate the personnel question of the PRB, namely, appointment and duration of mandate of the PRB's members, prerequisites for nomination and remuneration of members.
This policy memo is published within the project Open Public Procurement in Bosnia and Herzegovina jointly implemented by the Centre for Investigative Reporting (CIN), Analitika - Centre for Social Research, and the Public Interest Advocacy Centre (CPI). The Project is financed by the European Union and co-financed by the UK Government.
This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the author and can in no way be taken to reflect the views of the European Union.
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