Rules of Procedure

Rules of Procedure

Based on Article 21 of the Concessions Law (“Official Gazette of Republic of Srpska”, no: 25/02) and Article 16 and Article 17 of the Statute of the Concession Commission of Republic of Srpska, the Concession Commission of Republic of Srpska shall adopt:

RULES OF PROCEDURE
of the Concession Commission of Republic of Srpska

Basic Provisions

Article 1

These Rules of Procedure regulate the rules and procedure for applying for concession grant; the way the Commission works; presenting and objecting to the Commission; conducting discussions in front of the Commission; the sessions and the number of members of the Commission to consider the request; concentration of ownership and measures aimed to enable the growth of competition in a particular sector; the way of solving disputes; concession fee; concluding a concession contract; ceasing, breaking up and termination of the concession contract; monitoring and checking up of the Concessionaire’s work, as well as other issues related to the work of the Commission.

Article 2

The terms used in these Rules of Procedure have the following meaning:

“Concession Commission of Republic of Srpska” (hereinafter: the Commission) – a permanent, independent, regulatory legal entity constituted for the purpose of performing the functions of granting concessions.

“Concendant” – all competent ministries or authorities of the Republic of Srpska designated by the Government of Republic of Srpska to grant a concession.

“Concession” – the right granted by the Concendant for the purpose of securing the construction of infrastructure and / or exploitation services of natural resources, within the deadlines and under the terms agreed by the Concendant and the Concessionaire.

“Concessionaire” – a legal entity established in accordance with the laws of Republic of Srpska owned by a domestic and / or foreign legal entity to which a concession is granted and who executes the concession contract.

Article 3

In addition to the tasks referred to in Article 1 of these Rules of Procedure, the Commission:

  • prepares and monitors the execution of the Concessions Grant Policy Document and submits an annual report about it to the Government of Republic of Srpska,
  • on its own initiative or at the request of any interested entity, formulates general principles or suggests the implementation of specific regulations governing a particular economic or industrial field,
  • informs the relevant ministers of any matter submitted by the ministers to the Commission and may, on its own initiative, inform the ministers of any matter within its jurisdiction,
  • with the consent of the interested parties, may arbitrate in any dispute arising between the contractual parties, and may act as a mediator at the request of the interested parties,
  • in order to protect the public interest, it may demand that the Government of Republic of Srpska reimburses the costs of the participation of experts in public discussions.

Article 4

The procedure and activities for granting a concession for use in accordance with the Concessions Law of Republic of Srpska shall be established by:

  • PUBLIC INVITATION TO POTENTIAL BIDDERS (Roadmap of the flow of basic information when granting a concession through a public invitation and the timely flow of information and activities per participants, are given in Annex No. 1 of these Rules of Procedure and form its constituent part),
  • SELF-INITIATIVE OFFERS (a Roadmap of the flow of basic information when granting a concession through a self-initiative offer and the timely flow of information and activities per participants, are given in Annex 2 to these Rules of Procedure and form its constituent part)
  • AND GRANTING OF CONCESSION THROUGH PUBLIC INVITATION TO POTENTIAL BIDDERS

1. Definition of the economic justification study

Article 5

The Concendant makes an economic justification study for each project which is intended for giving on concession prior to the public invitation of potential bidders and in accordance with the Concession Grant Policy Document and submits it to the Concession Commission for consideration and approval.

Article 6

Economic justification study means a project on the degree of technical – technological, legal and economic justification of the concession and contains:

  • possibilities and limitations of a legal nature (existing and possible future legal situation – status, limitations of an imperatively legal nature – specific laws regulating the subject area),
  • examination of natural conditions,
  • justification study (technical – technological and economic justification)
  • urban – technical possibilities and limitations
  • licenses, approvals, consents and other necessary acts of the competent authorities,
  • analysis of the impact of the concession activity on life and health of humans and animals and the environment,
  • Preliminary Design (solution),
  • risk assessment.

Article 7

The Commission considers the justification study and, within one month, informs the Concendant whether the study has been approved, and in making its decision the Commission shall, in particular, take into account:

  • the impact of the project on providing services to the users,
  • the impact of the project on the fee charged to users,
  • whether the project fits into the goals established in the Concessions Grant Policy Document,
  • whether the project brings pure benefit to Republic of Srpska.

Article 8

If the study does not provide sufficient quality parameters, if it is not complete or not in accordance with the Concessions Grant Policy Document, the Commission shall return the documentation, together with proposals and a recommendation that would make the study acceptable, to the Concendant.

Article 9

The Commission’s decision to accept the economic justification study shall be submitted to the Concendant and shall be in the form prescribed by the Law on General Administrative Procedure of the Republic of Srpska.

2. Public Invitation

Article 10

Upon receiving the decision on acceptance of the justification study, the Concendant shall approach the drafting of the public invitation proposal and submits it with the necessary documentation to the Commission for consideration and approval within next 21 days

Article 11

The proposal for a public invitation has the prescribed form and must contain:

  • project description,
  • defining of economic, legal conditions and requirements related to the project,
  • principles and methods of calculating the concession fee,
  • the amount of the concession fee and the fee for participation in the public invitation,
  • a description of the resources and property made available to the Concessionaire,
  • criteria for evaluating tenders and awarding concessions, based on clear and public and all available principles of equality,
  • deadline for submission of tenders,
  • draft of Concession Contract,
  • a list of required licenses and approvals or other authorizations and
  • project-related tax relief, if any.

Article 12

The Commission, when considering the proposal for a public invitation, shall take into account all the prescribed conditions, in particular:

  • whether the criteria for evaluation, procedure and selection of the most successful tender are satisfactorily based on clear, public and non-discriminatory principles available to all,
  • whether the proposal for a public invitation deviates essentially from the economic justification study approved by the Commission.

Article 13

Within 21 days from the date of receiving the proposal for a public invitation, the Commission decides on approving a public invitation if it fulfils all the prescribed conditions and criteria from the previous Article of these Rules of Procedure.

Article 14

If the proposal for a public invitation does not contain the prescribed conditions or does not meet one of the criteria referred to in Article 12 of these Rules of Procedure, the Commission, with the proposal and recommendation, returns the proposal of the public invitation to the Concendant for changes and amendments

The Concendant is obligated, within 21 days of receiving the Commission’s decision, to act on the given instructions and make changes and amendments. If Concendant fails to act in accordance with the Commission’s instructions within the stated deadline, the proposal for the public invitation will be considered withdrawn.

Article 15

Commission’s Decisions are made in writing form in accordance with the provisions of the Law on General Administrative Procedure of Republic of Srpska and shall be forwarded to the Concendant for further procedure.

Article 16

In case that the Concendant has not made an economic justification study, the Commission may require that the public invitation includes an obligation of the bidder to make an economic justification study in which environmental protection assessments will be included. The economic justification study shall be considered during assessment of the criteria on whose basis the concession is granted.

Article 17

Upon receiving the decision to accept the proposal of a public invitation by the Commission, the Concendant shall announce a public invitation, which, in addition to the conditions prescribed in Article 11 of these Rules of Procedure, must contain:

  • the dates and deadlines for participation in the public invitation provided that this deadline cannot be less than 45 days from the date of publishing the announcement in the public invitation,
  • criteria for participation in a public invitation, rules under which a public invitation is conducted
  • way of submitting tender (under the code or full name of the bidder)
  • a notification of the date, time and place of the opening of tenders received on a public invitation,
  • the deadline within which the tender may be withdrawn,
  • data on the amount and forms of deposit,
  • conditions and way of repayment of the deposit,
  • the name of the entity responsible for providing all necessary information relevant to the public invitation process.

Article 18

The Concendant is obligated to announce the public invitation within 15 days from the day of receiving the decision on accepting the proposal of the public invitation and bears the costs of publishing the public invitation announcement.

Article 19

An announcement of public invitation is published in the “Official Gazette of Republic of Srpska” and in at least one national daily newspapers and, if requested by the Commission, an international public invitation shall be announced.

Article 20

Interested bidders download and prepare the documentation in accordance with the conditions prescribed in the announcement of public invitation.

Article 21

The tender shall be completed according to the conditions of the public invitation and shall consist of two parts:

  • the technical part,
  • financial part.

Each part is packaged in a separate envelope and those envelopes are placed together in a casing to be delivered to the address indicated in the public invitation.

Article 22

The Concendant receives tenders and supporting documentation that has arrived by the deadline set in the public invitation.

All tenders received with the accompanying act shall be submitted to the Commission.

3. Working method, composition and sessions of the Commission

Article 23

The Commission shall draw up a record of the tenders received and, in accordance with the deadline indicated in the public invitation, schedule the public opening of the tender. 

Article 24

The work of the Commission is public at the opening of tenders received and when requested by the Minister. The President of the Commission manages and coordinates the work of the Commission. The Secretary of the Commission attends all sessions of the Commission and is responsible for the legality of the work of the Commission.

In the absence of the President of the Commission, he shall be replaced by a member of the Commission authorized by the President of the Commission.

Article 25

The Commission shall decide on all matters within its jurisdiction at the sessions. Sessions of the Commission are convened and managed by the President of the Commission.

Article 26

The President of the Commission shall, in accordance with the Rules of Procedure, establish an agenda for discussion and decision-making at the session.

Article 27

Invitation and material for sessions of the Commission shall be delivered to the members of the Commission not later than eight days before the session, exceptionally in urgent cases and within a shorter deadline.

Article 28

Applications or requests for approval or reconsideration or review submitted to the Commission shall be considered and decided upon by at least three members of the Commission

Article 29

The Commission shall discuss and make decisions by a majority vote of the present members of the Commission (at least three members). The Commission, in the performance of assigned public authorizations, works in accordance with the rules of administrative procedure.

Article 30

Sessions of the Commission shall be held if necessary and at least four times a month.

Article 31

When opening tenders received, the Commission shall take into account whether the tenders are complete and timely.

Incomplete and untimely tenders will be rejected and the participants of procedure will be informed about it through the record.

Article 32

If the tender meets the required conditions of the technical part, the opening of the financial part will start.

The Commission draws up a ranking list according to the criteria of the public invitation.

Upon the establishment of the ranking list of bidders, the Commission prepares the record of the conducted public invitation, and submits the decision with the explanation of the proposal from the most favorable bidder to the Government within 21 days from the day of opening the tender.

Article 33

In addition to the decision on the proposal from the most favorable bidder, the Commission will submit a ranking list of participants in the public invitation, a record of the conducted public invitation, as well as other documentation related to the public invitation to the Government. 

Article 34

If the received tenders do not satisfy the required conditions of the public invitation, the Commission will return the tenders to the Concendant with a recommendation for the repetition of the public invitation procedure. The Concendant is obligated to inform the bidders about that in the next eight days. 

Article 35

A record of the public opening of tenders will be kept. It will be signed by the President, present members of the Commission and the Secretary, as well as the authorized representatives of participants in the public invitation.

Composition of the ranking list and proposals from the most favorable bidder will be carried out by the Commission without the presence of the public.

Article 36

The Commission decides in the form of: decision and conclusion.

Article 37

Commission’s decisions are made in writing form, with explanation. Commission’s decisions are made by the Secretary of the Commission and signed by the President of the Commission. The Commission delivers certified copies of the decision without delay to the participants in the procedure and to the competent Ministry.

The Commission may submit copies of other documents beside decision, at the request of the Minister.

Article 38

Commission’s decisions will be published in the “Official Gazette of Republic of Srpska”.

Article 39

Commission’s decisions are final and no appeal is allowed against them, but an administrative litigation may be initiated by filing a lawsuit to the Supreme Court of Republic of Srpska within 30 days from the date of receiving the decision.

Article 40

The Commission will reach a conclusion when deciding on secondary and procedural issues during the procedure.

The Conclusion will be made in writing form, signed by the President of the Commission, delivered to all participants in the procedure and the competent Ministry, and will not be published in the “Official Gazette of Republic of Srpska”.

4. Presentation, objections and holding discussions in front of the Commission

Article 41

The Commission may hold a public discussion on any matter within its jurisdiction, if it is in the public interest.

Before holding a public discussion, the Commission issues written instructions setting out the date for submission of all necessary documents and information, the date of the discussion and providing any information it deems necessary.

The Commission may hold a public discussion at the request of the participant in the public invitation or the Concendant.

The Commission estimates whether a holding of public discussion is necessary.

Article 42

The authorized person of the participant in the procedure may present facts, views and arguments in front of the Commission and present all relevant available documentation and present written objections to the Commission.

Article 43

The authorized person of the participant in the procedure must have a special power of attorney (in writing or verbally on the record) as well as in the form of a private document, provided that the Commission has the authorization to request that a certified power of attorney is submitted in case of doubt of a private document.

Article 44

The participant in the procedure has the right to:

  • be invited to the process of the opening of tenders,
  • the right to return the deposit within 5 days from the date of receiving the written notice that the tender has not been accepted,
  • the right to receive a reasoning in the notice about the results of a public invitation,
  • the right to object on the lawfulness of the conducted public invitation.

Article 45

The Commission may require that the participants submit their opinion and evidence in writing form.

The Commission may prohibit or restrict stating, publishing or announcing all information or documents in public, if it is required by the character of the document or if it protects the public interest.

Article 46

Minutes shall be kept during a public discussion in front of the Commission. It will be signed by the President, present members of the Commission and the Secretary, as well as the authorized representatives of the legal entities invited to the discussion.

The minutes of the session of the Commission have their form and contain: date, time and place of the public discussion, names of the present members of the Commission, names of authorized representatives of the legal entities invited to the discussion, subject of debate and decision, statements of the participants of the debate, opinion of the members of the Commission, as well as the other conclusions that were reached at the session.

Article 47

The decisions of the Commission are final.

Against the decision of the Commission, within 60 days and upon the request of participants in the procedure, a request for reviewing the decision of the Commission may be submitted in the following cases:

  • if a new fact has been identified that would have influenced a different decision, had it been known at the time of the decision,
  • if the interested party was unable to make a statement about the decision for justified reasons.

Article 48

If one of the conditions from the previous article of these Rules of Procedure is fulfilled, the Commission may modify or annul its decision, and if the required conditions are not fulfilled, the Commission will confirm its decision.

Article 49

The Commission may correct the decision, if it contains a spelling or calculus or any technical error, on its own initiative or at the request of an interested party.

Article 50

The Commission or any of the interested entities may store one certified copy of the decision or warrant made in accordance with the Concessions Law in the registry of the competent court, where the Concessionaire is registered in accordance with the laws of Republic of Srpska. 

Article 51

A stored decision or warrant has the same power and effect as well as a decision of a competent court where the Concessionaire is registered in accordance with the laws of Republic of Srpska.

Article 52

If only one participant appears in a public invitation and his tender, in the Commission’s opinion, fulfills the conditions and criteria of the open invitation, the Concendant may negotiate with one participant and make a concession grant decision.

Article 53

If the participant designated for the Concessionaire subsequently gives up from signing the Concession Contract or does not sign the Contract within the prescribed period, the Commission may make a decision and propose the first next bidder from the ranking list to the Government, unless the Government decides to repeat a public call in such a situation under the same conditions and procedure.

Article 54

If the participant designated for the Concessionaire subsequently gives up from signing the Concession Contract or does not sign the Contract within the prescribed period, he loses the right on deposit. 

5. Signing the Concessions Contract

Article 55

After receiving the decision on the proposal of the most favorable bidder and other documentation, the Government grants the concession to the most favorable bidder who has fulfilled and met all the criteria set out in the public invitation and is of high rank in respect to other bidders, of which the Concendant informs the other bidders.

Article 56

The Government will inform the Commission about the grant of the concession to the most favorable bidder as soon as possible.

A copy of the Concession Contract and all project documentation in executive form will be submitted to the Commission.

Article 57

The Concession Contract is made by the Concendant and is concluded between the Concendant and the Concessionaire.

The Concession Contract contains:

  • the rights and obligations of the contractual parties, including the obligation of providing safe service to customers at the lowest prices, given the circumstances,
  • actions related to obtaining the necessary authorizations for the implementation of activities in accordance with the Concession Contract,
  • investment conditions,
  • relief and land use,
  • resources and property made available by the Government of Republic of Srpska,
  • the term of the concession,
  • concession fee and the way of distributing the concession fee,
  • conditions for contract renewal,
  • sanctions and compensations for non-fulfillment of obligations of the contractual parties,
  • termination of the contract and the procedure in case of termination of the contract before the date of end determined by the contract,
  • the way of resolving disputes, including international arbitration, if the contractual parties agree on that,
  • measures to enable project financing,
  • a description of events considered force majeure,
  • determination and alignment of the tariff,
  • other elements important for the subject of the concession.

Article 58

The Concession Contract cannot be transferred to another Concessionaire without the prior consent of the Commission.

Article 59

When considering the request for consent to transfer the concession to another Concessionaire, The Commission takes into account:

  • financial situation of the proposed new Concessionaire,
  • the expertise and ability of the proposed new Concessionaire to provide services and perform its obligations from the Concession Contract,
  • the impact that the granted concession will have on the concentration of ownership in a certain sector of activity.

Article 60

The absence of a provision on the content of the contract referred to in Article 57 of these Rules of Procedure may lead to the nullity of the entire contract.

Article 61

Each Concession Contract will be recorded and kept in a single register of concessions with the Ministry in charge of finance.

Article 62

The Concessionaire and the Concendant may sign a special contract with banks and other financial institutions which will regulate more closely the financing of the concession in accordance with the Concession Contract, and there are no obstacles to the signing of other types of contracts by the Concessionaire and the Concendant (Surety Contract etc.) in order to fulfill the obligations provided by the Concession Contract.

6. Concession Fee

Article 63

In accordance with the Concession Contract, the Concessionaire pays the concession fee for the granted concession.

The Concession Contract is void if it does not contain an obligation to pay the concession fee by the Concessionaire.

The proposal of the concession fee is given by the Concendant, and the final amount of the concession fee is determined by the Commission and the Concendant.

The concession fee must be determined or at least determinable in terms of its amount and must be of a monetary nature.

Article 64

Concession fee is determined depending on the type, quality, category, quantity, purpose and market price of natural resources or goods in general use, i.e. depending on the type of activity, market business conditions, duration of the concession, estimated risk and expected profit. 

Article 65

When determining the amount of the concession fee, the criteria stated in the previous article of these Rules of Procedure will be considered, regardless of whether it is the use of natural resources and goods in general use or the performing activities of general interest.

In determining the concession fee, the environmental protection criteria is also taken into account (assess the harmful effects of the concession activity on the environment and the necessary funds for their subsequent renewal).

Article 66

The Concessionaire pays a fee in accordance with the Law on Administrative Fees for total or partial costs incurred due to the consideration of any issue submitted to the Commission or costs incurred in the implementation of decisions or orders of the Commission.

Article 67

The Commission may request from the Government of Republic of Srpska or the Concessionaire to reimburse the costs of participation of experts in public hearings.

7. Way of settlements of disputes

Article 68

The court in Republic of Srpska is exclusively competent for settlement of disputes that arise in the exercise of concession rights and obligations whose subject is real estate.

For settlement of disputes that arise in the implementation of other mutual rights and obligations, the Concendant and the Concessionaire may agree on the jurisdiction of domestic arbitration, and the jurisdiction of international arbitration if the Concessionaire is a foreign entity.

For the settlement of potential disputes, the contractual parties may also agree on the arbitration of the Commission.

Article 69

The local jurisdiction of the court in disputes whose subject are the rights to real estates is regulated by the provisions of the Law on Civil Procedure.

Article 70

The contractual parties are obliged to define extremely precisely the jurisdiction of arbitration under the Concession Contract or to accept the jurisdiction of the domestic court in all disputes arising from the Concession Contract. 

8. Supervision and verification of the Concessionaire’s Work

Article 71

The work of the Concessionaire during the Concession Contract is a subject to verification and supervision by the Commission.

The Concessionaire’s work is supervised and verified by members of the Commission and expert associates from the service of supervision and verification of the Concessionaire’s work.

The President of the Commission may authorize another person in writing to supervise and verify the Concessionaire’s work.

Article 72

A person from the previous article of these Rules of Procedure may:

  • enter the facility or property of the Concessionaire at any appropriate time,
  • study or reproduce books, minutes, reports, files and other documents related to the activities of the Concessionaire and
  • require the submission of any data or document necessary for the application of the Concessions Law.

Article 73

The person to whom the books, minutes, reports, files and other documents are entrusted for keeping or monitoring will, at the request of the authorized person, enable access and verification thereof.

Article 74

Entities referred to in Article 71 are obliged to prove their official identity. The authorized person will make a record on the supervision and verification of the Concessionaire’s work, which will be signed by the person and the person present to the supervision.

On the basis of the record, the person from the first paragraph issues a decision to the Concessionaire, ordering him to eliminate the observed deficiencies within the deadline determined by the Law on General Administrative Procedure.

If the deficiencies are of an irremovable nature or the Concessionaire does not eliminate them within the required deadline, the authorized person will use a decision to initiate the termination of the Concession Contract.

The decision made by the authorized person in the procedure of supervision and verification is signed by the President of the Commission.

Article 75

The Concessionaire, or any other person, may not interfere with the work of the person referred to in Article 71, give or verify a false statement during the supervision and verification.

In case of obstruction of the work of this person in the procedure of supervision and verification, the procedure is initiated before the competent court in accordance with the law.

9. Ceasing, termination and breaking of the concession contract

Article 76

Concession Contract is ceased:

  • if the performance of the concession activity endangers the environment and health or legally protected areas and facilities, which could not have been foreseen at the time of granting the concession,
  • in case of war,
  • in case of inability to perform the concession activity due to significant damage to the concession object which was not caused or which is not a consequence of gross negligence of the Concessionaire or the concession company.

The concession relation may also be ceased with other cases provided by the Concession Contract.

Article 77

The concession relation continues when the circumstances provided in the previous article of these Rules of Procedure terminate and when the conditions provided in the Concession Contract are met.

The contractual parties regulate their relations by a Concession Contract in case of termination of the concession relation.

Article 78

If the termination of the concession relation is a consequence of force majeure and lasts for a long time after which the continuation of this relation is not possible or it can no longer achieve the purpose of the Concession Contract, expiration date of the concession may be extended, but only within a total period of 30 years, i.e 50 years if circumstances that require investment for which a longer period of time is needed arise.

Article 79

The Concession Contract is terminated:

  • upon the expiration of the agreed deadline in accordance with the law,
  • by opening bankruptcy proceedings against the Concessionaire,
  • upon the termination of the subject of the concession and
  • upon the breaking of the Concession Contract.

Article 80

The Concession Contract may also be terminated in the following cases:

  • purchase of concession,
  • deprivation of the concession,
  • if it has been determined by a final judgment that in the procedure of granting a concession or during negotiations, a criminal offense, which has led or could have led to the granting of a concession to a certain Concessionaire, has been committed.

The concession relation is also terminated for other reasons determined by the Concession Contract, and can be of different nature, such as the impossibility of fulfillment due to force majeure, changed circumstances, expropriation of concession facilities, restitution, etc.

Article 81

The Concession Contract may be broken off:

  • if the Concessionaire is insolvent or if it is in bankruptcy,
  • if the Concessionaire or Concendant do not fulfill the contractual obligations.

10. CONCENTRATION OF OWNERSHIP

Article 82

The subject of the concession implies the right to use natural resources; the right to use goods in general use which are determined by law to be the property of Republic of Srpska; performing activities of general interest; as well as a concession which implies the construction, reconstruction and financing of a complete facility, device or plant, its use and handover to the ownership of the Republic of Srpska within the agreed period.

Article 83

A concession may be granted to a domestic and foreign legal entity that meets the conditions provided by the Concessions Law.

Article 84

The concession is granted for a period not exceeding 30 years, but if exceptional circumstances, that require investments for which a longer period of time is needed, arise, the agreed period may be extended, but it may not be longer than 50 years.

The degree of taken over business risk, the need to build facilities in the initial period, as well as the need to develop a competitive market in the field of activities that present the subject of the concession are taken into account.

Article 85

In the case of significant projects and major investments (railway transport, air transport, hydropower plants, etc.), the Concessionaire will be provided with protection of his investment by granting exclusive rights to provide services in the areas for which the concession was granted.

Article 86

With the legal status of the subject of the concession, there are two cases:

  • when the natural resources and goods in general use are not managed by the previous user who is organized in some form of legal entity (public companies),
  • when the future concession activity or its predominant part is already being performed and there is a legal entity that manages it.

Article 87

In the first case, the following from the previous article will be examined:

  • the legal regime of a specific natural resources, i.e. public good, where attention should be paid to the laws and bylaws that regulate the given area and to the restrictions of an imperative-legal nature,
  • cadastral and land registry status of land and facilities, where it is necessary to determine who is the owner of the real properties in question, i.e. whether there is a user of easement and other rights and to what extent it is necessary to resolve property – legal relations and application of regulations on expropriation, which is especially important in the construction of roads, railways, airports, sports facilities, etc. 

Article 88

In the second case referred to Article 86, the economic – legal position of the legal entity will also be examined and the following will be determined:

  • form of organizing a legal entity,
  • powers of the legal entity with regard to the management and use of goods in general use, natural resources and the performance of activities of general interest,
  • the possibility of termination of the legal entity and transfer of all rights and obligations to the future Concessionaire, i.e. taking over the authorization or part of the authorization of that legal entity by the Concessionaire,
  • economic – financial situation (analysis of business performance, investments in development, identification of debtor-creditor relations, etc.),
  • social status (number of employees, qualifications, age structure, consequences of reducing the number of employees, social programs, etc.).

Article 89

When granting a concession, the possible harmful consequences of economic exploitation of natural resources are taken into account, as well as the consequences of long-term exploitation (reduction of ore, mineral and other capacities) and relations between current economic interest and long-term economic and natural negative effects of exploitation.

Article 90

In accordance with the previous article, it is necessary to assess the degree of technical – technological improvement in the exploitation of natural resources and goods in general use that would be obtained by granting a concession.

The economic aspect implies the assessment of the economic benefits for society and the individual consumer, as well as the degree of productivity and efficiency of the concession activity that are achieved without investment or with minimal investment by the Concessionaire.

Article 91

The list of goods at the beginning of the contract term is an integral part of the Concession Contract and is subject to verification during the duration and after the expiration of the Concession Contract.

II Granting Concession via Self-Initiative Offer

Article 92

In the procedure of granting a concession via self-initiated offer, the Concessionaire will directly submit a proposal for granting concession for which no public invitation has been called to the Concendant.

Article 93

The submitted proposal for granting concession from the previous article of these Rules of Procedure contains the minimum conditions, which relate to:

  • full name of the company, Head Office, photocopy of registration, name and surname and capacity of authorized person and other identification if necessary,
  • the subject of the concession for which the proposal is submitted,
  • assessment of justification and amount of investment,
  • timeframe of duration of the concession,
  • basic conditions for the realization of the concession,
  • preliminary and short conceptual design for performing the concession activity.

Article 94

Within a period that cannot be longer than 30 days, the Concendant will assess whether there is a public interest in the concession in question. In assessing the proposal for the concession in question, the Concendant will especially take into account:

  • that the project which is the subject of the proposed concession can be realized only if the process, design, methodology or engineering concept to which the bidder claims an exclusive right, is used,
  • the urgency of providing services or the existence of infrastructure for public use.

Article 95

If the Concendant assesses that there is a public interest in the concession in question, the request for obtaining the authorization to negotiate with the Concessionaire is defined and submitted to the Commission as soon as possible, alongside with the proposal and supporting documentation.

Article 96

Within a period which may not exceed 15 days, the Commission will inspect the received request for obtaining authorization for negotiations and if the subject request is in accordance with the Concession Grant Policy Document and has no technical shortcomings, the authorization for negotiations will be sent to the Concendant. 

Article 97

In order to conscientiously fulfill the obligations related to the grant of the concession, the Concessionaire is obliged to provide a guarantee in the name of the project guarantee, which may be in the form of: cash, check, letter of credit payable on call or some other form, in amount that cannot be less than 1% of the investment value.

The Commission will assess the condition referred to in paragraph 1 of this Article based on all relevant factors and will regulate the amount by its decision.

After signing the Concession Contract, the determined amount is returned to the Concessionaire.

Article 98

Based on the obtained authorization for negotiations and proposals for the grant of concession, Concendant negotiates with the Concessionaire and defines the basic elements for project development and, within a period which may not be longer than 30 days, submits it to the Concessionaire.

Article 99

In addition to general and special elements, the project for granting a concession should contain:

  • the subject of the concession and determination of the area in which the concession activity will be performed,
  • resolved property-legal relations on the subject of the concession,
  • the term of the concession,
  • minimum technical, financial and experiential qualifications that must be met by the Concessionaire,
  • data about the impact of the concession activity on the environment, infrastructure and other economic areas,
  • conditions and ways of providing services to users,
  • data about the necessary cash and other resources and the dynamics of their investments,
  • prices and general conditions for the use of goods and performance of activities,
  • required number of jobs and qualified work force,
  • special conditions for project development defined by the Ministries, taking into account the specifics of every concession (
  • draft of the Concession Contract,
  • the amount of the project guarantee.

Article 100

Based on the given elements, the Concessionaire completes the project, collects the necessary documentation from the competent republican and local authorities, uses the services of recognized and licensed companies and submits it to the Concendant. The Concendant inspects the submitted project, and if it meets the required criteria within a period that cannot be longer than 15 days, it is submitted to the Commission. 

Article 101

Within a period that cannot be longer than 21 days, The Commission inspects the submitted project, and if the project is incomplete or defective, it will be sent back to the Concendant to eliminate the deficiencies and complete the documentation within 8 days.

If the submitted project is complete and if the Commission determines that all the conditions and elements for the realization of the project provided by law have been met, it will send the decision on granting a concession to the Government.

Article 102

The Government makes a decision on granting a concession, and based on the decision of the Government, the Concendant and the Concessionaire sign a Concession Contract in a way and according to the procedure as regulated by these Rules of Procedure. 

Article 103

The signed Concession Contract based on a self-initiated offer has the form and content prescribed by Article 57 of these Rules of Procedure.

The Concendant will submit a copy of the signed contract with the supporting documentation to the Commission.

The Commission inspects the signed Concession Contract, archives it together with the supporting documentation and checks and supervises the fulfilment of the taken over obligations, in the way regulated by these Rules of Procedure.

Article 104

Procedure, way of work, presentation and objections; conducting hearings in front of the Commission; sessions and the number of members of the Commission who will consider the request; way of resolving disputes; concession fee; the signing of the Concession Contract in the case of a self-initiated offer and the verification and supervision of the Concessionaire’s work are regulated in the way prescribed by these Rules of Procedure.

III Transitional and final provisions

Article 105

The provisions of the Law on General Administrative Procedure will apply on issues of procedure in front of the Commission that are not determined by these Rules of Procedure, and the Commission will decide about other issues, in each specific case.

Article 106

Amendments to these Rules of Procedure will be made in the way and according to the procedure to which the Rules of Procedure are enacted.

Article 107

These Rules of Procedure shall enter into force on the next day following the consent of the Government of Republic of Srpska and shall be published in the “Official Gazette of Republic of Srpska”.

In Banja Luka, July 7th 2004 
President of the Commission

Predrag Aškrabić

Contact

  • Save Mrkalja 16
    78 000 Banja Luka, BA
  • komisija@koncesije-rs.org
  • +387 51 490-890
  • +387 51 490-481