How to prepare a public procurement in the healthcare sector?
In this presentation, we will outline the main steps that should be implemented in a procedure for awarding a public contract under Article 18 of the Public Procurement Act, so that it is prepared, organized and conducted in accordance with the rules of the Law on Public Procurement and its Regulations implementation and other relevant legal acts in force.
1. General conditions.
1.1. Legal term "Public contracting authority" of public procurement!
Public contracting authorities are defined in Art. 5, para. 2 of the ZOP. This also includes state and municipal medical institutions [1] , whose relevance and applicability to the concept of "public contracting authority" is complemented by the definition of "Public organization" given in §2, item 43 of the Transitional and Final Provisions of the Law on Public Procurement In continuation of what has been said, state and municipal medical institutions are public law organizations that acquire the status of "public contracting authority", as they are created with the specific purpose of satisfying needs of general interest; b) they do not have industrial or commercial in nature; c) are financed with more than 50 percent by state, territorial or local bodies or by other public law organizations; or have a management or supervisory body, the majority of the members to which they are appointed by a public contracting authority under Art. 5, para. 2, items 1-14.
The public contracting authority creates a profile in the Unified National Electronic Web-based Platform called "Centralized Automated Information System "Electronic Public Procurement" (CAIS EOP) All actions related to the awarding of public procurement in the platform are performed by contracting authorities who are registered in it .
With the registration, a profile of the organization is created on the platform (Art. 9g PPZOP). The contracting authorities should also create the profile of the buyer (the internet address of the contracting authority), which is maintained on the CAIS EOP platform. The buyer's profile and the CAIS EOP contain the documentation for a specific public order, acc. Art. 36 ZOP.
1.2. Objects of public procurement in health care.
The public procurements carried out by public contracting authorities in the field of health care are of diverse orientation, and above all of essential importance are the procedures for awarding public procurements for the purchase of medicinal products, reagents and laboratory consumables for the laboratory, purchase of equipment, maintenance services of technique, construction, the list being non-exhaustive.
1.3. Target.
The purpose of the public procurement is to ensure optimal efficiency in spending public funds, as well as funds provided by European funds and programs.
1.4. Principles
Public contracts are awarded in accordance with and in compliance with the principles of equality and non-discrimination; free competition; proportionality; publicity and transparency, the same arising from the principles of the Treaty on the Functioning of the European Union (TFEU) and in particular those of free movement of goods, freedom of establishment and freedom to provide services and mutual recognition.
2. Preparation of a public procurement procedure.
Public contracting authorities in the healthcare sector should forecast procurement needs and foresee the optimal time for preparation, implementation and conclusion of a contract, which on the one hand is imperatively set as a deadline, and on the other hand must be consistent with the goals and needs for which opens the procedure.
In this context, the PPA provides for the planning of the procedures that the contracting authority intends to carry out in the following year. Procuring entities may announce their intentions to award public contracts or to conclude framework agreements in the next 12 months by publishing a preliminary information notice (Art. 23 ZOP).
2.1. Determination of the type of public procurement.
When awarding public contracts, public contracting authorities apply the procedures under Art. 18, para. 1, items 1 - 3, 6 - 8 and 11 - 13 of the ZOP.
Supplies of medicinal products to medical facilities are usually carried out through an open procedure or a public competition, depending on the estimated value and staked quantities, according to the needs of the specific contracting authority. This type of procedure is to an exceptional extent guaranteeing the interests of the contracting authority. Because, on the one hand, it provides the opportunity for the participation of a wide range of potential participants who, under conditions of competition, would satisfy the interests of the contracting authority in terms of price and quality to the maximum extent. Last but not least, this competition would guarantee an optimal and expedient use of public funds.
2.2. Market consulting
When preparing for the award of a public contract, the contracting authority may conduct market consultations by seeking advice from independent experts or bodies, or from market participants (Article 44 of the Public Procurement Act). Employers in the "Healthcare" sector often, and it is recommended, to conduct market consultations, especially in cases concerning specialized medical equipment (e.g. tomographs, mammograms, linear accelerators, etc.). Such an obvious example is the market consultations conducted by the Ministry of Health for the purchase of two sanitary vehicles for air transport (helicopters), for the needs of media aid. [2]
2.3. Content and preparation of documentation
The phase of preparation of the public procurement in the "Healthcare" sector includes the preparation of qualified documentation that is in accordance with the specifics of the object of the procurement and the regulatory requirements of the Public Procurement Act, the Regulations for its implementation and other relevant legal acts.
From my professional experience as a lawyer who participated in the preparation of procedures for the awarding of public contracts in an oncology treatment facility, I would say that it is a good practice for the contracting authority to issue an order to determine the team of specialists participating in the preparation of a procedure for the awarding of public contracts order, incl. preparation of the documentation, setting a deadline for the preparatory phase of the procedure.
The documentation in a public procurement includes: a decision to open the procedure, a public procurement announcement, the technical specifications, investment and other projects, when required for the preparation of the offer, the methodology for determining the complex evaluation of the offer, when applicable, sample documents, as well as an instruction for their preparation, a draft contract, except when the contract is concluded under general conditions or a regulatory act determines its mandatory content. The documentation may also contain other documents, depending on the specifics of the object of the public procurement. This set of documents, along with a prepared decision to open the procedure and an announcement, are the final stage of the preparation of the procedure.
NB!!! When preparing the documentation, one should take into account the amendments adopted in the Public Procurement Act and Public Procurement Act as of the date of preparation and opening of the procedure for awarding the public procurement, such as, for example, the introduced special conditions for the execution of orders (Art. 47 of the Public Procurement Act), the mandatory environmental requirements (Art. .47a ZOP).
The contracting authority should comprehensively formulate in the Public Procurement Notice the requirements for the participants, including - grounds for mandatory removal (Article 54 of the Civil Code), incl. at its discretion, to include the non-mandatory grounds under Art. 55 of the Civil Code; - the selection criteria, which refer to: 1. the suitability (legal capacity) to exercise a professional activity; 2. the economic and financial situation; 3. technical and professional abilities, necessarily specifying their requirements in accordance with Art. 60 - 61 of the Civil Code and Art. 63 of the Civil Code and the ways to prove them.
3. Publication of the procedure for awarding the general contract.
Each public order valued under Art. 20, para. 1 - 3 and 7 of the Public Procurement Act is published in the Register of Public Procurement and in the relevant profile of the buyer and receives a unique number.
Documents related to participation in public procurement are submitted through the platform in accordance with the rules for its use under Art. 229, para. 1, item 12 of the Civil Code and subject to compliance with the requirements set by the contracting authority.
The contracting authority sets up a commission for the selection of participants, consideration and evaluation of the offers, in accordance with the methods and terms specified in the PPA and PPZOP.
The commission is an auxiliary body of the contracting authority for consideration of the received offers of the participants in the procedures, assessment and ranking, which in the final phase of its activity presents a report/protocol reflecting its overall activity, findings, proposals.
4. Completion of the procedure
The final act of a public procurement procedure is the final decision of the contracting authority, determining the contractor under a public procurement contract or ordering the termination of the procedure (Art. 108 of the Public Procurement Act).
5. Proceedings on appeal
Decisions of the contracting authority made as a result of a procedure for awarding a public contract are subject to appeal before the Commission for the Protection of Competition (Art. 196 of the Civil Procedure Code).
In Part Six "Removal of Violations in Procedures" of the Civil Procedure Code, the acts subject to appeal, the time limits for those entitled to file an appeal are regulated. In the complaint, all objections and the grounds for them, as well as the requests of the complainant, should be specified comprehensively and specifically. Indeed, the law allows, if the CPC assesses the presence of an omission, to bring in the complainant by giving him a three-day period to correct the irregularities. From our many years of practice in the field of appealing acts before the CPC, we have come to the opinion that a well-grounded and comprehensive appeal from objections with its submission on time is always an indication of thoroughness and precision, in this sense, high professionalism. Instructions of the CPC according to Art. 199, para. 4 ZOP would be somewhat a sign of weak argumentation on the part of the contracting authority already in the initial phase of the special production case before the CPC.
If the complaint does not suffer from defects or if they are removed in time, the CPC schedules an open meeting, providing an opportunity to get acquainted with the evidence collected in the case file and with the provision of new documentation at the latest on the day before the hearing on the examination of the complaint (Art. 209 of ZOP).
The procedure for appealing an act of a contracting authority is two-instance. Decisions of the CPC are subject to appeal before the Supreme Administrative Court, which rules within one month of receiving the appeal and its decision is final. (Art. 216 of the Civil Code).
6. Conclusion
This presentation constitutes a conceptual scheme of the main steps that contracting authorities in the "Healthcare" sector need to consider when preparing a public procurement procedure. The specifics in this area are essential, which is why we cannot cover all aspects and possible problems.
Expert assistance in the preparation, announcement, evaluation and awarding of electronic public procurements in the CAIS EOP is our priority and an opportunity to assist contracting authorities in this area.
Author: Borilsava Doncheva - attorney at law
[1] Art. 5, para. 2, item 16 ZOP
[2] Market research pursuant to Art. 21, para. 2 of the ZOP and market consultations pursuant to Art. 44 of ZOP (government.bg)
Regarding the preparation of your documents for your public order, you can contact us by email: This email address is being protected from spambots. You need JavaScript enabled to view it. .