Articles 75-83 of the Public Procurement Act, OG 120/16 (PPA 2016)
Pursuant to Article 75 of the 2016 Public Procurement Act, the conflict of interest between the contracting authority and the economic operator includes the situations in which contracting authority representatives or procurement service providers acting on behalf of the contracting authority and involved in the conduct of the public procurement procedure or who may affect the outcome of such a procedure, have, directly or indirectly, a finanical, economic or any other personal interest which may be deemed damaging in terms of their impartiality and independence during the procedure, and in particular:
- if the representative of the contracting authority also carries out management-related activities in the economic operator, or
- if the representative of the contracting authority holds a business share, stocks or other rights entitling said representative to participate in management, i.e. the equity of said economic operator by more than 0.5%.
A representative of the contracting authority means:
- the head and the member of the management or the supervisory body of the contracting authority:
- the member of the public procurement committee,
- any other person involved in the conduct or who may affect the decision making process of the contracting authority in the public procurement procedure, and
- persons from the previous three paragraphs hereof employed by the procurement service provider who act on behalf of the contracting authority.
The provision of the conflict of interest article pertaining to the representatives of the contracting authority who are also managers in the economic operator or to the representatives of the contracting authority as holders of business shares, stocks or other rights entitling them to participate in management, i.e. the equity of said economic operator by more than 0.5% is also adequately applied to blood relatives in the direct line of descent or the indirect line 4x removed, relatives by marriage 2x removed, a spouse or a common-law partner, regardless of the termination of marriage, as well as to adoptive parents and foster children (hereinunder: related persons) of said representatives of the contracting authority.
The conflict of interest provision shall also apply if the person related to the representative of the contracting authority has acquired the share, stock or other rights which entitle them to participate in management i.e. the equity of the economic operator by more than 0.5% within no less than two years before the appointment i.e. the commencement of the term of office of the representative of the contracting authority to which said person is related.
The conflict of interest provision applies in case of the transfer of the ownership share to another entity or a separate body (a commissioner) pursuant to separate regulations on the suppression of the
conflict of interest.
By way of derogation from the previous paragraph, if the head of the contracting authority body, a member of the management or the supervisory board of the contracting authority or a person related to them carries out management-related activities in the economic operator as an official representative of a contracting authority, and not as a private individual, it shall not constitute a conflict of interest.
An agreement or a framework agreement on public procurement concluded contrary to provisions of Articles 75-83 of the PPC 2016 shall be deemed null and void.
