Protection of competition in public procurement procedures

Abstract

A violation of the principle of competitiveness in procedures of public
procurement, in the form of a “fraudelant tender”, represents an aspect of
restrictive agreeing, which forms the largest violation of the principle of
free market competition, i.e. since the existence of intention is presumed,
it is forbidden, and its consequence is nullity.
The subject of this paper is the protection of effective competition in
public procurement procedures, observed through the prism of legislative
solutions of community law, and the law of the Republic of Serbia. The
scope of analysis includes three separate issues. The first issue is the
legal nature of a restrictive agreement, which is used for the division of
the sources of the procurement. The second aspect is based on the
analysis of the specific form of the agreement, which often includes
restrictive practices rather than restrictive laws. The third segment is
related to the investigation of the effects of different measures to be
used, in terms of prevention or in terms of sanction, in order to limit the
unwanted effects of distortion of effective competition.
The protection of the principle of effective competition in procedures of
public procuring is carried out in two basic segments: as a system of
preventive measures, and by sanctions for the violation of competition.
Although it has undoubtedly greater importance, a corpus of preventive
measures are applied in a materially lesser extent in business practice,
and that is why a directly opposite direction of behavior is a road sign for
providing an adequate legal answer to a wide practice of prohibited,
agreed upon, participation of bidders in proceedings of public procuring,
the harmful consequences of which, in a businеss/legal sense and the
widest social sense, are enormous.