of 9th July 2018
A. INTRODUCTORY PROVISIONS
(4) It is possible to use the public (open) part of the IS without identification in the IS (viewing currently published public contracts, tender opening records, etc.), while the publication of contract notices for users that are contracting authorities and the submission of tenders for users submitting tenders via the IS is only possible upon prior registration (identification in the IS); consequently, the IS is considered to be a closed IS within the meaning of the e-commerce legislation in force, as defined below.
(6) If not provided otherwise by the contracting authority in the public contract publication or the invitation to tender (e.g. indicating a subdomain address graphically adapted to the contracting authority), the IS shall be available for a particular inquiry via the Internet or at any of the following websites: www.eponudbe.si or www.e-ponudbe.si.
(8) The use of the IS is generally independent from the hardware if the requirements referred to in the previous paragraph of this article are met (usage is typically possible on personal computers with Windows, Linux and MacOS, tablets with Windows, iOS and Android, and on smartphones with iOS and Android).
COMMITMENT TO TENDER AND APPLICATION OF THE LAW
(2) Communication between clients in the IS is exclusively by electronic means and has the same effect as if it was in writing under the legislation in force. Every item of data associated with the publication of a public contract or another inquiry or with a tender, supplementations and changes and sent to the IS (generally by clicking buttons, such as “Publish”, “Publish public contract”, “Send”, “Submit”, “Submit tender”, etc., where the sender is clearly known) shall be considered handwritten by the sender (this applies both to documents or tenders as a whole and every individual part of the submitted item of data or every document included in the message sent). Consequently the use of terms such as “signed, initialled, every page, every statement or part of tender signed, etc.” in inquiries or procurement documents shall mean that, by sending items to the IS in the above manner, the user who submitted a tender, change or supplementation to such an inquiry duly provided their handwritten signature on each part and all parts of the content submitted to the IS and the content submitted as a whole.
(3) A tender of any other data associated with the submission of a tender (e.g. supplementation, change, clarification, etc.) and submitted to the IS shall be considered a handwritten tender in the tender submission procedure given in writing, and is fully binding on the bidder in accordance with the provisions of the code governing obligations and pertaining to bidding. The same shall apply, mutatis mutandis, to the documentation submitted to the IS by the contracting authority.
(4) If the IS user does not submit data to the IS (the publication of a public contract or other inquiry, the submission of a tender or any other data associated with bidding) on their own behalf and for their own account (e.g. as a natural person on their own behalf, the statutory representative of an economic operator on the latter’s behalf), the IS user who submitted data to the IS shall, at the time of submitting the data to the IS, be considered to have been duly authorised to submit it, within the meaning of the code governing obligations, by the entity on behalf of which they submitted the data to the IS. Authorisation relationships are an internal matter of the entities on behalf of which the data is submitted (relationships between the authorising entity and the authorised entity); the contracting party assumes the appropriate scope and substance of the authorisation given). Only in the event of doubt can a contracting authority call upon an economic operator on behalf of which data was submitted to the IS, by written or electronic means, to confirm that the user who submitted the data to the IS was, at the time of submission, authorised to represent it in the extent appropriate for such scope and substance. If, in the course of submission, a valid tender bond was provided as financial collateral and the economic operator confirmed that the user who submitted the data to the IS was not, at the time, authorised to represent it in the extent appropriate for such scope and substance, the user who received the data as part of the tender or enquiry submission can liquidate the provided financial collateral.
(5) Every user shall be responsible for ensuring that, if the data is not submitted to the IS on their own behalf and for their own account, they have a valid authorisation, issued by the economic operator or operators on behalf of which they are submitting the data to the IS, in the extent appropriate for such scope and substance of the data submitted to the IS. If the user goes beyond the bounds of their authorisation, they shall be materially and criminally liable to every economic operator on behalf of which they submitted data to the IS as well as to the user that is the contracting authority publishing the public contract or enquiry and to the IS administrator.
(6) The IS administrator shall not be liable to the user that is a contracting authority or the economic operator on behalf of which data was submitted for any damage incurred as a result of the submission of data to the IS by an unauthorised or inadequately authorised person as it has no influence over internal authorisation relationships and does not establish any technical or substantive obstacles to the submission of tenders or other content. The IS administrator only provides these entities with the identification data of the person who submitted the data to the IS (email, mobile phone number, any data on the entry time and content and, if available, the IP address from which the connection with the IS was established) and may, in the event of unauthorised use, report a criminal offence detected in relation thereto to the competent authorities.
(7) Authorisation relationship in a tender submitted in response to a public contract or other inquiry: the economic operator that submitted a tender on its own behalf as well as on behalf of its partners, subcontractors or other economic operators on the capacities of which it is referring to shall be considered to have the same mutatis mutandis authorisation as above to submit the tender on its own behalf as well as on their behalf and for their account, in the extent appropriate for the purpose of their authorisation (the user submitting data to the IS on behalf and for the account of a third party shall be considered to have the authorisation appropriate for such scope and substance). A user that is a contracting authority may, if it does not require the provision of an authorisation with the tender itself, subsequently call upon the economic operator to demonstrate, in the manner referred to above, that the user who submitted the data to the IS had an appropriate authorisation at the time; if an authorisation is not provided or the provided authorisation is inappropriate, the sanctions are the same as set out in this article (tender elimination, invalidity of the submitted data).
(8) The same shall apply mutatis mutandis to authorisations of natural persons (e.g. the authorisation to check the criminal record of responsible persons) if the authorisation is not duly signed and provided with the tender itself. In such an event, the economic operator undertakes to provide the appropriate authorisation upon being called to do so by the contracting authority, in accordance with the legislation in force and by the deadline set by the contracting authority, in the existing form (electronic, written, etc.).
(9) All of the above shall also apply mutatis mutandis to any other communication, such as a tender cancellation, the submission of a tender clarification or supplementation or other communication.
(10) Delivery: the contracting authority shall deliver all messages in the IS (calls for tender supplementation and clarification, invitations to tender, etc.) to users that are bidders primarily through messages inside the IS and secondary to the email address or email addresses that, at the time of sending, are indicated in a particular submitted tender as the contact addresses of users seeing an individual tender. The IS records the information on the user who submitted a tender to the IS. By indicating the user who submitted a tender to the IS (and the users who, at the time when the message of the contracting authority was sent, were entered as users seeing an individual tender), the bidder shall be considered to have agreed for all communication between the contracting authority and the bidder after the tender submission to be via this user’s profile within the IS and email or these users’ profiles and emails. The contracting authority only demonstrates that its message left the contracting authority’s email system and was sent to the emails indicated as emails of the users in the tender at the time when the message was sent. The bidder undertakes to regularly check the content of the emails of users indicated in the IS under this tender and to provide electronic confirmation of the receipt of a particular message upon the contracting authority’s request. From the submission of the tender and until the issue of the contracting authority’s decision in a particular inquiry, the bidder also undertakes to regularly check the IS by logging in and checking whether the contracting authority has sent a call for supplementation, an invitation or other communication, in the event that it fails to receive an email for any reason.
(11) The contracting authority and the IS administrator shall not be responsible for ensuring that the user actually receives a particular email (as it cannot be technically guaranteed 100%); the bidder can thus check any received calls at any time by logging in and going to Bidder, Calls or My invitations – by displaying calls or invitations in such a manner, the bidder shall be considered to be familiar with the call or invitation from the moment of its publication.
- tender submission is the electronic submission of a tender within the meaning of the act governing public procurement and the implementing regulations in force;
- publication of a public contract in the IS is the publication of a procedure in the IS (a tender submission procedure in any inquiry procedure) as part of which bidders can submit their tenders;
- user is any client entering and communicating in the IS;
- IS administrator is the company which ensures that the system is running smoothly and grants user rights;
- contracting authority is the IS user that is generating a public contract or other inquiry or call for a change or supplementation and to which the tenders submitted by the bidders in the IS are addressed;
- bidder is the IS user that submits a tender in response to a public contract or other inquiry to the IS or participates in a tender submission procedure, including in any subsequent communication (justifications, changes and supplementations, etc.);
- hash value, also called the fingerprint or hash of particular content in the IS (such as a published public contract, a change to a published public contract, submitted tender, submitted withdrawal of a tender, call, change, supplementation, record of the public opening of tenders, etc.) is a mathematical algorithm (function) that receives a message of arbitrary size as an input and returns a fixed binary value (hash value) as an output. It is used in the IS to change input messages of arbitrary size into fixed-size output values. This function is important because it is inverse or one-way, meaning that it is impossible to find the input message knowing the output value. It is also impossible to find two input messages that would produce the same output results, and it is therefore used to confirm received content in the IS.
- current public contracts are public contracts (or other inquiries) for which any bidder that is registered and logged in the IS can submit a tender;
- my inquiries are the inquiries of contracting authorities to which an individual bidder has been invited. If not provided otherwise in a particular procedure (or if such a contract is also published under current public contracts), only bidders that were invited by the contracting authority can submit tenders for such inquiries.
- published public contracts for which the deadline for submission has expired are public contracts (or other inquiries) for which the deadline for submission of tenders has expired and the submission of tenders is no longer possible;
- closed public contracts are contracts that were given the status of closed contracts by the contracting authority. The contracting authority can no longer perform any actions with closed public contracts (e.g. calls, invitations) but can only view them;
- deadline for submission of tenders, deadline for receipt of supplementation or justification based on a call is the deadline defined by the contracting authority in the IS as a deadline by which the IS is receiving tenders, changes to tenders, supplementations or justifications;
- tender submission is the moment when the tender arrives in the IS. The same shall apply mutatis mutandis to other data submitted to the IS;
- late tender is a tender sent by the bidder to the IS after the expiration of the deadline for submission of tenders. Such a tender is not recorded in the IS (furthermore, the bidder is unable to submit an electronic tender after the expiration of the deadline for submission of tenders, either because the IS does not offer the possibility to submit a tender after the expiration of the deadline or because the bidder has an open tender submission form and clicks on the send button after the expiration of the deadline for submission of tenders or this deadline expires before the content of the tender reaches the IS – in this case, the IS notifies the bidder that the tender submission was unsuccessful and the bidder does not obtain a confirmation of a successfully submitted tender). The same shall apply mutatis mutandis to other data submitted to the IS with an imposed deadline;
- public opening of tenders is a procedure that is carried out in accordance with the provisions of the act governing public procurement. If the contracting authority indicated that the opening of tenders for a particular public contract or other inquiry was public, the opening of tenders is carried out automatically by the IS directly after the expiration of the deadline for submission of tenders provided in a particular public contract or other inquiry. The record of the opening of tenders becomes publicly available within a few seconds after the expiration of the deadline for submission of tenders for the relevant public contract or other inquiry and can be found under public contracts for which the deadline for submission of tenders has expired (the generation of the PFD file with the data from the content of tenders received on time takes from between a few and up to approximately sixty seconds). Information about the public opening of tenders is publicly available to any user, and bidders that submitted tenders for a particular public opening also receive an email with a link to the record of the public opening of tenders. The entire procedure of the public opening of tenders is carried out automatically by the IS and represents a procedure of the public opening of tenders within the meaning of the act governing public procurement.
(2) The IS intended for the electronic submission of tenders in public procurement procedures in accordance with the provisions of the act governing public procurement, procedures below the threshold for the use of public procurement legislation and in other inquiries. The IS is an electronic register and does not interfere with the public procurement procedure before the submission of tenders or from the moment of publication or notification of the selection of the most economically advantageous bidder. All actions of the contracting authority performed outside of the system shall be considered independently from this IS (e.g. the publication of a public contract, additional clarifications and the publication of the result of the procedure on enaročanje – the IS does not replace the publication of information on the Public Procurement Portal – enaročanje).
(3) The IS refreshes data based on the time of receipt of a particular item of data (the data that arrives in the system first is processed first, etc.). It is possible that a situation arises where the IS receives two or more submitted sets of data almost simultaneously; in this case, they are arranged by the IS based on the time of receipt and processed as such.
(4) The official time to which deadlines in the IS are tied shall be the local time set on the server that is displayed in the IS at all times (in the upper right corner of the screen). The time of submission of a particular tender shall be considered in accordance with the time recorded in the IS as the time of receipt of the tender, and the same shall apply mutatis mutandis to other data submitted to the IS.
(5) The contracting authority with the appropriate license can publish a public contract or other inquiry. The contracting authority’s license to use the IS is tied to a particular inquiry or time period in accordance with the pricelist of the IS administrator, as amended from time to time, and also includes the license for a free submission of tenders and other communication of other users pertaining to this contracting authority’s public contracts or inquiries.
(6) The IS obtains the data about a particular domestic economic operator or contracting authority from the Business Register (an external IS) for the purposes of the first registration in the system and the submission of tenders with other economic operators.
(7) The IS contains software mechanisms and is set up based on organisational measures, the combination of which ensures, through technical means and appropriate procedures, that the IS is operating in accordance with the provisions of the act governing public procurement within the meaning of Article 37, Paragraph 10 of the act governing public procurement.
C. HOW TO USE THE IS
ENTERING AND LEAVING THE IS
(1) Every user accesses the IS using a secure connection (SSL protocol, https connection). All communication between an individual user and the IS is encrypted. For every tender in the bidding procedure entered in the IS, the latter records the user who entered it and the exact date and time the tender was received by the IS.
(3) The IS enables identification with a username and a password. After the identification of the username in the form of the user’s email address and password, the IS sends the user a one-time password, valid only for a single entry in the IS, to a previously specified mobile phone number (the so-called two-step authentication). Upon every user identification, the IS sends a new one-time password to enter the IS.
(4) The combination of a username and a password and a one-time password to enter the IS enables unique identification of the user (bidder, contracting authority). A user who identifies him or herself with an appropriate username and password and one-time password to enter the IS shall be considered to have sufficient authorisation from the bidder or the contracting authority, appropriate for the substance, scope and purpose of submitting a tender or inquiry or bidding and is fully identified with this data. A bidder who was successfully identified and submitted a tender for a particular inquiry to the IS shall be considered to have provided ha handwritten signature on such a tender (this signature shall be considered to be the handwritten signature of a statutory representative or authorised person). The same shall apply to a contracting authority that entered a public contract or other inquiry.
(5) Every user must keep their identification elements (username, password and one-time password sent to the their mobile phone) safe and must not share them with third parties. In the event of a suspected disclosure of identification elements, the user must immediately notify the IS administrator thereof and shall be issued new identification elements as soon as possible (the service is charged based on the valid tariff if the user fails to demonstrate that they are not responsible for the disclosure – the user carries the burden or proof). If the user (bidder) requests the issue of new identification elements due to a suspected disclosure of identification elements at the time of tender submission, the user shall be considered to have cancelled all tenders in this procedure and, as a result, their tenders submitted based on their old identification elements shall be considered invalid if they so requested from the contracting authority before the expiration of the deadline for submission of tenders and they notified the contracting authority thereof in any way by being able to prove that the contracting authority received the message before the expiration of the deadline for submission of tenders, otherwise the user’s previously submitted tenders shall continue to be valid. If, as a result, the contracting authority is unable to close the public contract successfully and the reason for cancellation is on the part of the bidder that requested the cancellation, the contracting authority can award the contract to the next most economically advantageous bidder and seek reimbursement for the costs (and any damage) incurred as a result of the cancellation from the bidder that cancelled their identification elements.
(6) A user that is a contracting authority or a bidder registers in the IS upon first use in the manner provided in the IS. The first registered IS user can add and edit other users of the same contracting authority or bidder.
(7) The user stops using the IS by clicking the appropriate button in the browser (leave system), thus closing and ending the current session, and closing the browser (for security reasons).
(8) The above rules on entering and leaving the IS shall apply mutatis mutandis to all types of users identified in the system.
(9) In the event of technical problems or questions regarding the use of the IS, the email address and telephone number for technical support is provided in the IS.
D. USE OF THE IS BY THE CONTRACTING AUTHORITY
(1) The contracting authority shall enter a public contract or other inquiry in the IS in the manner provided in the IS. The contracting authority is solely responsible for the entry of all data required for a successful submission of tenders.
(3) The contracting authority may change the parameters of a particular public contract or inquiry until the deadline for submission of tenders in the manner provided in the IS. The IS records any change to the content of the public contract or inquiry, together with its hash value. For the purpose of non-disclosure, the contracting authority does not have the information on whether any bidder submitted a tender before the deadline for submission of tenders.
(4) Directly after the expiration of the deadline for submission of tenders, an electronic record of the public opening of tenders becomes available to the contracting authority and all bidders in the public part of the IS, if the contracting authority envisaged a public opening of tenders. This record is automatically generated by the IS and shall in no way constitute the acceptance of a tender by the contracting authority or its selection. The contracting authority’s selection shall not be published in the IS but on the e-naročanje portal or shall be delivered in accordance with the legislation in force.
(5) In the case of inquiries not carried out in accordance with the rules of the act governing public procurement and in the case of procedures carried out in accordance with the rules of public procurement but are not envisaged to be published on the e-naročanje portal, the contracting authority may prepare its decision in the IS and the latter shall send it to all the bidders that submitted a tender. In addition to electronic form, the decision can also be sent in writing.
(6) The contracting authority may, at any time before the expiration of the deadline for submission of tenders, cancel the public contract or other inquiry in accordance with the legislation in force; after the expiration of the deadline, it must issue its decision in accordance with the legislation on public procurement in force if the inquiry is subject to public procurement rules.
(7) The provisions above shall also apply mutatis mutandis to the contracting authority in other inquiry procedures.
E. USE OF THE IS BY THE BIDDER
(1) The IS time shall be the local time set in the IS and displayed to the users at all times (on every relevant screen in the upper right corner of the displayed IS).
(2) The success of a submitted tender shall be visible to the user by the IS displaying a confirmation of the exact date and time of receipt of the tender in the IS and the hash value of the received content which can be checked by the contracting authority and the bidder at any time.
(3) Every public contract or other inquiry shall be open to all bidders at the same time.
(4) The bidder can submit their tender for a particular public contract or inquiry before the expiration of the deadline for submission of tenders. A particular submitted tender can be cancelled at any time before the deadline for submission of tenders. Tenders cannot be cancelled after the expiration of the deadline for submission of tenders – any withdrawal from the tender after the deadline for submission of tenders carried out in accordance with the act governing public procurement shall be sanctioned within the meaning of a withdrawal from the tender after the expiration of the deadline for submission of tenders. The bidder may submit only one tender per inquiry – the IS prevents the user from submitting more than one tender per inquiry. The user may change their tender before the expiration of the deadline for submission of tenders by cancelling the submitted tender and submitting a new one.
(5) The same shall apply mutatis mutandis to other inquiries.
F. FORCE MAJEURE
(1) Force majeure means all unforeseeable and unexpected events that occur independently of the will of the clients and cannot be foreseen by the clients or the IS administrator and affect the awarding of a public contract or other inquiry in any way.
(2) In the event of force majeure, the contracting authority or the IS administrator shall notify all clients as soon as possible, either by electronic or other means. If force majeure affects the submission of tenders in any way, the public contract or inquiry shall be annulled. After the end of the force majeure event, the contracting authority shall decide whether to repeat the inquiry procedure. As a rule, the procedure is not repeated if no bidders had submitted a tender in response to a public contract or inquiry before the occurrence of the force majeure event or the IS failure.
(3) None of the clients shall be liable for their failure to fulfil any of their obligations for reasons that are beyond their control.
G. IS FAILURE OR IS FUNCTION FAILURE
(1) The IS administrator shall ensure that the IS runs smoothly. As the IS is complex, the possibility of errors in its operation cannot be fully eliminated, both in its hardware and software or communications. In the event of an IS failure, the IS administrator shall ensure that the IS is down for the short possible time and shall, to the best of its ability, strive to bring the IS into operation.
(2) If an IS disruption or failure occurs after the publication of a public contract or other inquiry, the contracting authority shall determine, on a case-by-case basis, whether the nature of the IS failure is such that the tender submission procedure must be repeated (e.g. the submission shall be cancelled and repeated if at least one bidder successfully submitted their tender from the publication of the public contract or other inquiry to the occurrence of the disruption or failure).
(3) The IS administrator does not assume any liability for the damage that anyone may incur as a result of using the IS and shall be liable to the contracting authority up to the amount of the financial compensation for the use of the IS applying to an individual inquiry of the contracting authority that was annulled or suspended due to the failure or improper functioning of the IS based on the valid pricelist for an individual public contract publication. The IS administrator shall not be liable to bidders for an inquiry that was annulled or suspended due to the failure or improper functioning of the IS.
(4) The IS administrator does not assume any liability for direct or indirect damage (including commercial damage, loss of income, suspension of operations, loss of data) incurred with or arising from the use of the IS.
(5) The IS administrator shall maintain the IS. In order to eliminate errors and maintain the IS, the latter can be subject to occasional planned suspensions of operation that will take place at a time when inquiry procedures are not being performed (as a rule, on non-work days and during the night). As a rule, users will be informed of any planned suspensions of operation in the IS at least two days in advance.
(6) The IS administrator or the contracting authority may turn off certain IS functions for a particular inquiry. In this case, the bidders will be familiarised with the functions available to them in a particular inquiry. The IS administrator shall have the right to change or add IS functions without prior notification.
H. FINAL PROVISIONS
(2) Information about a particular public contract or other inquiry, including tenders, is generally stored for at least 2 years from their entry, and the contracting authority may archive them (the IS enables XML export for e-Storage purposes). Nevertheless, the contracting authority must, in the shortest possible time after the conclusion of a particular inquiry, but no later than within 30 days from the conclusion of a particular procedure, save all the content with all the relevant data, including the submitted tenders, to its own medium. The IS administrator shall not, in any case, be responsible for any loss of data in the IS.
(3) The information system ePonudbe.si is the property of the author or the holder of material copyright, Praetor d.o.o., Ljubljana. The author of the system does not check the entered data and shall not be responsible for the content of public contracts and other inquiries or the content of submitted tenders (including any malware code or computer viruses uploaded to the IS) – the IS is automated and the author does not, in any case, have any affect on the actions of individual IS users and shall not be responsible for the data entered by the user (contracting authority or bidder) regarding a particular inquiry.
(5) The IS users undertake to strive to resolve any disputes and ambiguities regarding the use of this IS amicably. If an agreement between the clients cannot be reached, any disputes arising from the use of the IS shall be resolved by the court with subject matter jurisdiction in Ljubljana under Slovenian law.