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:
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.
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.
In addition to the tasks referred to in Article 1 of these Rules of Procedure, the Commission:
The procedure and activities for granting a concession for use in accordance with the Concessions Law of Republic of Srpska shall be established by:
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.
Economic justification study means a project on the degree of technical – technological, legal and economic justification of the concession and contains:
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:
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.
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.
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
The proposal for a public invitation has the prescribed form and must contain:
The Commission, when considering the proposal for a public invitation, shall take into account all the prescribed conditions, in particular:
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.
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.
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.
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.
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 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.
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.
Interested bidders download and prepare the documentation in accordance with the conditions prescribed in the announcement of public invitation.
The tender shall be completed according to the conditions of the public invitation and shall consist of two parts:
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.
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.
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.
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.
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.
The President of the Commission shall, in accordance with the Rules of Procedure, establish an agenda for discussion and decision-making at the session.
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.
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
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.
Sessions of the Commission shall be held if necessary and at least four times a month.
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.
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.
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.
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.
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.
The Commission decides in the form of: decision and conclusion.
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.
Commission’s decisions will be published in the “Official Gazette of Republic of Srpska”.
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.
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”.
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.
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.
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.
The participant in the procedure has the right to:
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
The Concession Contract is made by the Concendant and is concluded between the Concendant and the Concessionaire.
The Concession Contract contains:
The Concession Contract cannot be transferred to another Concessionaire without the prior consent of the Commission.
When considering the request for consent to transfer the concession to another Concessionaire, The Commission takes into account:
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.
Each Concession Contract will be recorded and kept in a single register of concessions with the Ministry in charge of finance.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
A person from the previous article of these Rules of Procedure may:
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.
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.
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.
Concession Contract is ceased:
The concession relation may also be ceased with other cases provided by the Concession Contract.
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.
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.
The Concession Contract is terminated:
The Concession Contract may also be terminated in the following cases:
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.
The Concession Contract may be broken off:
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.
A concession may be granted to a domestic and foreign legal entity that meets the conditions provided by the Concessions Law.
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.
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.
With the legal status of the subject of the concession, there are two cases:
In the first case, the following from the previous article will be examined:
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:
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.
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.
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.
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.
The submitted proposal for granting concession from the previous article of these Rules of Procedure contains the minimum conditions, which relate to:
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:
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.
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.
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.
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.
In addition to general and special elements, the project for granting a concession should contain:
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.
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.
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.
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.
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.
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.
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.
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