The Sarajevo Canton Prosecutor’s Office issued an order not to conduct an investigation against the management of Sarajevoputevi d.d., which for years did not implement the Public Procurement Law, for which Transparency International in BiH (TI BiH) filed a criminal complaint back in 2019. In the meantime, this public enterprise began applying the law and announcing tenders, and after four years, the Prosecutor’s Office concluded that there were no elements of a criminal offense in Sarajevoputevi’s previous actions, even though in 2018 alone, contracts worth over 5.3 million KM were awarded without tenders.
The prosecutorial decision states that the law does not clearly and unambiguously define the obligation for it to be applied by public enterprises operating on a commercial basis, and that the Public Procurement Agency (AJN) refuses to provide a clear interpretation.
-Given such factual circumstances and again emphasizing the reluctance of the Public Procurement Agency to clearly and explicitly state whether the company Sarajevoputevi d.d. was obliged to apply the Public Procurement Law, the only conclusion that can be drawn at this moment is that the reported party acted within its authority, including the authority to determine whether this company was obliged to conduct public procurement procedures. The Prosecutor’s Office highlights the shortcomings of such a system and the need for regulations that would clearly and unambiguously define this matter, states the prosecutorial decision.
TI BiH has filed a complaint against this decision because the lack of punishment for such occurrences can have long-term consequences, given that Ceste d.d. Mostar recently made a similar decision and stopped conducting tenders, and other public enterprises might follow suit.
In BiH, there are over 3,000 contracting authorities, of which over 450 are public enterprises that implement this law, including mines, construction, utility, and road companies. Therefore, Sarajevoputevi definitely cannot be an exception, especially since the
This is also the opinion of the Office for Audit of Institutions of FBiH, which in a previous report stated that the state’s capital participation in Sarajevoputevi amounts to 77.32%, and that the government oversees management and appoints more than half of the board members.
–From the above, it follows that the Public Procurement Law applies to DD “Sarajevoputevi” Sarajevo, and that it is obliged to apply this Law1, as stated in the 2018 audit report. Since 2019, Sarajevoputevi has been applying the Public Procurement Law and conducting tenders, which was noted in last year’s audit report as a fulfilled recommendation.
Ceste d.d, Mostar has not been applying the law for a year
TI BiH has previously warned that such a case could lead to a chain reaction, and it is certainly concerning that the assembly of the public enterprise Ceste d.d. Mostar has made a similar decision to stop applying the Public Procurement Law.
AJN has been informed of everything, and according to data from the public procurement portal, tenders have not been conducted for over a year. Almost the same argumentation is stated in the response from the management of Cesta d.d. Mostar sent to TI BiH, where it is claimed that the company does not perform activities of public interest, has a commercial character, and does not have a monopoly on the market, as it obtains road infrastructure maintenance jobs through public competitions and is therefore not obliged to conduct tenders.
TI BiH believes that such a stance by judicial institutions and the ambiguity of AJN’s opinion could potentially lead to a series of similar decisions by public enterprises that could freely cease conducting tenders, thereby opening up a huge space for corruption and siphoning money from the public sector.
