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I INTRODUCTORY
PROVISIONS
Article 1
This decree regulates the procedure and method of sale
of socially and state-owned capital and property in
enterprises to be privatized by means of public tender
(hereinafter: tender) in accordance with the stipulated
procedure, conditions and criteria in which offers are
publicly opened, evaluated, accepted or rejected.
Socially or state-owned capital or property (hereinafter:
capital), referred to in paragraph 1 of this article, is
expressed in the nominal value, and in the percentage share
of this capital in the total value of capital in the
enterprise to be privatized.
Article 2
Tender is
organized and conducted by the Agency for Privatization
(hereinafter: Agency) in accordance with law and this
decree.
The Agency can, based on a special tender or on an
invitation, engage advisors for the conduct of its
operations, and for the support in organizing tenders and in
the selection of the best bidder.
An individual employed by the Agency, who has ownership
rights in enterprises to be privatized, the capital or
property of which is subject of tender sale, or who
participates in a tender, his/her relative up to the third
kin in a straight line who participates in a tender, cannot
be engaged in such a tender.
Article 3
The
Tender Commission (hereinafter: Commission), which is formed
by the minister in charge of privatization affairs in
accordance with law, monitors the conduct of tenders and,
based on the proposal by the Agency, approves the tender
results.
Three representatives of the government of the Republic of
Serbia are appointed to the Commission, one representative
of the local authority in which the seat of the entity being
privatized is situated, and one representative of the entity
to be privatized itself.
The Chairman of the Commission is appointed from the ranks
of the government members of the Commission.
The Commission makes decisions by majority votes from the
total number of its members.
An individual who has ownership rights in enterprises to be
privatized, the capital or property of which is the subject
of tender sale, or who participates in tender, his/her
relative up to the third kin in a straight line, who
participates in a tender, cannot be a member of the
Commission.
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II PREPARATION FOR
TENDER SALE
Article 4
Tender sale encompasses:
1) Sale preparation,
2) Submission and receipt of offers,
3) Opening and evaluation of offers,
4) Contracting the sale.
Article 5
Sale
preparation encompasses:
1) Preparation of tender documentation,
2) Announcement of public invitation for the submission of
offers for participating in a tender.
Article 6
Tender
documentation consists of:
1) Confidentiality agreement (contract on the protection of
confidential information),
2) Information Memorandum on the entity being privatized,
consisting of: name and address of the entity, description
of its main operations, its organizational and ownership
structure, the total bookkeeping value of its capital or
property expressed in Dinars and its EURO equivalent,
business operations data, and the credit-worthiness of the
entity,
3) The conditions and deadlines for the participation in a
tender, description of procedure for the conduct of tender,
conditions for composing of a comprehensive analysis of the
entity's business operations (due diligence), time and
manner of visiting the entity to be privatized, criteria for
the ranking of offers, a copy of this decree,
4) Draft of sales contract,
5) Other information and documentation, as necessary for the
tender sale.
The Agency determines the conditions for participation in a
tender, and the criteria for the ranking of offers, which
must be time-specified, as well as defined in terms of
value, quality and technical matters.
Article 7
The
Agency announces public invitation to participation in a
tender after the completion of tender documentation referred
to in article 6 of this decree.
Public invitation from paragraph 1 of this article consist
of:
1) Name, address and other basic information on the subject
of privatization (i.e. telephone number, fax number, etc.),
2) Description of its main operations,
3) Percentage of capital, and/or description of property
being offered for sale,
4) Dates and deadlines for participation in tender,
5) Tender code,
6) Name of contact person, in charge of providing more
detailed information,
7) Other information of importance to the participation in
tender.
The Agency announces the public invitation from paragraph 1
of this article in the public media, at least in one daily
newspaper and on the Internet, and for the significantly
more important subjects of privatization also in the foreign
press, as and when the Agency so evaluates as appropriate.
The costs of announcement from paragraph 1 of this article
are for the account of the subject of privatization in
accordance with law.
Article 8
Tender
documentation is sold to individuals and legal entities,
which express their interest in participating in a tender
(hereinafter: tender participants) at the price determined
by the minister in charge of privatization affairs.
Tender participants are obliged to sign the confidentiality
agreement from article 6, point 1, of this decree, prior to
receiving the tender documentation.
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III
SUBMISSION AND RECEIPT OF OFFERS
Article 9
Offers to
the tender are to be submitted on the basis of the public
invitation and the tender documentation.
Submission of offer shall be deemed as acceptance of the
tender conditions, and/or the terms of contract from article
6, point 4, of this decree. Submission of offer shall
include the price offered for the subject of privatization.
The Agency can demand the report by an independent auditor
on the conducted audit of tender participants' accounting
statements.
Article
10
Date of
announcing the public invitation shall be deemed as the
starting date of tender.
Offers are submitted to the Agency within the deadline
stipulated in the public invitation, which cannot be shorter
than 15 days from the date of announcing the public
invitation.
Date of submission of offer to the post office shall be
deemed as the date of its submission to the Agency, if the
offer is submitted by post.
The offer can be withdrawn by a written request no later
than seven days before the expiry of deadline from paragraph
2. of this article.
In the case described in paragraph 4. of this article, the
bidder is entitled to the refund of deposit within five days
from the date on which the written request for withdrawal is
received.
Article
11
The
original of the offer, and copies, are submitted directly to
the Agency or by recorded mail in closed envelopes.
The original of the offer is to be submitted in an envelope
marked as "original".
Copies of the original offer, documentation for the
identification of tender participants, original of the
evidence for the effected payment of deposit, the account
number for the refund of deposit in case of the offer's
rejection, are to be submitted in an envelope marked as
"corresponding documentation".
The envelopes from paragraphs 2. and 3. of this article are
to be submitted together in one envelope.
All envelopes must have the name of tender participant, be
addressed and sealed, bear the tender code and the warning
that they cannot be opened before the deadline stated in the
public announcement from article 7. of this decree.
Article
12
The
identification documents for individuals from article 11.
paragraph 3. of this decree are authenticated copies of the
personal identity card or passport, and authenticated copies
of registration documents for legal entities.
The identification documents for an authorized
representative of a legal entity are the authorization and
authenticated copy of identity card or passport.
Article
13
The
Bidder pays a deposit.
The deposit is paid in money and in the manner stipulated in
the public invitation.
Article
14
The
Agency determines the procedure for the receipt of offers,
method of keeping the records of received offers, as well as
the safe-keeping of documentation.
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IV. OPENING
AND EVALUATION OF OFFERS
Article 15
The
tender participants shall be informed on a timely basis
about the place and time of opening of offers.
The Agency, with the presence of the Commission, opens the
offers, determines their timely submission, and their
completeness in accordance with article 11, paragraph 3. of
this decree.
The Tender participants, their representatives or authorized
legal representatives can be present at the opening of
offers.
Untimely and incomplete offers will not be considered and
the Commission shall inform the tender participant to this
effect within five days from the date of the opening of
offers.
Article
16
After the
conclusion of the public opening of offers, the Agency
evaluates the offers within 30 days from the date of the
opening of offers.
The evaluation of offers and the announcement of the results
of tender are also carried out when only one offer is
submitted.
Offers, for which the Agency determines are not fulfilling
of the conditions of tender, shall be deemed invalid and the
tender participant will be informed to this effect in
writing within three days from the expiry of deadline
stipulated in paragraph 1. of this article.
If the Agency determines that none of the offers fulfill the
criteria and conditions of the tender, the tender is
declared unsuccessful and this declaration is publicly
announced.
The Commission approves the decisions of the Agency referred
to in paragraphs 3. and 4. of this article.
Article
17
If an
offer is voided or is rejected, the deposit is refunded to
the tender participant within seven days from the date of
the signing of sale contract, or within maximum of 45 days
from the expiry of deadline referred to in article 16,
paragraph 3. of this decree.
The costs of the refund of deposit are for the account of
the bidder.
No interest shall be calculated for deposits refunded on a
timely basis.
Interest shall be paid for deposits refunded after the
deadline, only for the days exceeding the deadline expiry
date, in accordance with the applicable law determining the
rate of such interest.
Article
18
The
Agency determines the rankings of valid offers by applying
the stipulated criteria (hereinafter: tender list).
The best offer is ranked first on the tender list.
The Commission, upon the Agency's proposal, approves the
results of tender.
Article
19
Within
three days from the date of the decision referred to in
article 18, paragraph 3. of this decree, the Agency shall
inform in writing all the ranked tender participants about
the results of the tender. The Agency shall send an
invitation t? highest ranked tender participant to execute
the sale contract with the tender participant as the buyer.
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V. TENDERS WITH
ONE PARTICIPANT
Article 20
In case of only one participant responding to a tender,
whose offer is determined by the Agency as fulfilling of
conditions and criteria of the tender, the Commission can,
upon the Agency's proposal, decide to repeat the tender or
sell the capital to the tender participant
.
Article 21
The minister in charge of privatization affairs appoints
the commission for the negotiations with the tender
participant from article 20. of this decree.
The number of negotiating commission's members is determined
for each negotiation separately.
The negotiating commission is authorized to:
1) conduct negotiations with the tender participant, and
2) record and sign minutes from such negotiation.
The negotiating commission makes decisions my majority
voting.
The limitations from article 3, paragraph 4. of this decree
apply equally on the membership in commission referred to by
paragraph 1. of this article.
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VI EXECUTION OF SALE
CONTRACT
Article 22
The
Agency, entity being privatized and the buyer execute the
sale contract within 30 days from the date of the expiry of
deadline referred to in article 19. of this decree.
Article
23
The buyer
is entitled to ownership rights upon the effected payment of
the entire amount of contractual price less the amount of
deposit in a manner and within the deadline stipulated in
the tender documentation and the sale contract (hereinafter:
contract).
Article
24
Should
the tender participant, whose offer was declared the best,
not sign the offered contract within the stipulated time
period, it will be considered that such tender participant
withdrew from purchase.
In the case referred to in paragraph 1. of this article, the
Agency shall invite the next most highly ranked tender
participant from the tender list to execute the contract.
If the two most highly ranked tender participants do not
accept the signing of the contract the Agency shall
determine further course of action in co-operation with the
Ministry.
If the tender participants referred to by paragraphs 1. and
3. of this article do not execute the sale contract or fail
to effect the payment of the contractual price within the
contracted deadline, such tender participants forfeits the
entitlement to the refund of deposit.
Article 25
The tender participants are entitled to object to the
legality of the conduct of tender procedure.
The objection referred to in paragraph 1. of this article is
to be submitted to the ministry in charge of privatization
affairs (hereinafter: the Ministry) within eight days from
the date of receipt of tender results notification.
The Ministry decides on the objection within eight days from
the date of receipt of such objection.
Article 26
The Agency shall keep in its archive the documentation
on tenders for the period of at least three years from the
date of execution of contract.
Article
27
This
decree comes into force on the next day following the day of
its publication in the "Official Gazette of the Republic of
Serbia". |
