Public procurement in Bosnia and Herzegovina: case law of the Court of Bosnia and Herzegovina

Author: Azur Prnjavorac, attorney at law and mediator · Last updated: 18 September 2026 · Field of law: public procurement law

This page sets out, in English, the legal framework governing public procurement in Bosnia and Herzegovina and nineteen legal positions of the Court of Bosnia and Herzegovina drawn from judgments delivered between 2016 and 2021. Each position is presented with the ruling of the court, a summary of its reasoning with the relevant statutory provisions, and the case number and date of the judgment, so that the source can be cited in written submissions. The page closes with a note on how the office assists tenderers and contracting authorities and with links to the related Bosnian language pages.

Legal framework

Public procurement in Bosnia and Herzegovina is governed by a single state level statute, the Public Procurement Law of Bosnia and Herzegovina (Zakon o javnim nabavkama BiH, Official Gazette of BiH nos. 39/14, 59/22 and 50/24), which applies throughout the country to contracting authorities at state, entity, cantonal and municipal level. Article 3 lays down the basic principles: the contracting authority must take all necessary measures to secure fair and active competition among potential tenderers, while ensuring equal treatment, non-discrimination and transparency. Article 14 sets the value thresholds. Below 50,000 KM for goods and services, and below 80,000 KM for works, the contracting authority may apply any procedure other than a direct agreement; open, restricted and negotiated procedures, design contests and competitive dialogue are mandatory from 250,000 KM for goods and services in the case of state and entity bodies; and from 9,000,000 KM for works an international notice is also required. Article 90 governs the direct agreement.

The qualification of tenderers and the content of tenders are regulated in detail. Article 45 deals with personal capacity and the grounds for exclusion, including grave professional misconduct, and Article 45(6) permits the contracting authority to approach the competent bodies where it has doubts about the existence of a ground for exclusion. Article 66 addresses abnormally low prices: the contracting authority must seek an explanation and may reject the tender where the explanation is not well founded. Under Article 72 the contract is sent for signature after expiry of the fifteen day period following notification of the award, and the contract itself is concluded in accordance with the laws on obligations (Zakon o obligacionim odnosima) in force in Bosnia and Herzegovina. That link to the general law of obligations is important in practice, because it determines which body may set a concluded contract aside.

Legal protection is exercised in two stages. An appeal is first lodged with the contracting authority, which under Article 100 has five days to examine whether it is timely, admissible and properly drawn. Article 101 sets the time limits for appeal: ten days from publication of the notice or of the tender documents, five days from the record of the opening of tenders, and ten days from the decision on the award or on annulment of the procedure. Under Article 108 the fee for initiating appeal proceedings ranges from 750 KM to 15,000 KM, depending on the estimated value of the procurement. Appeals are decided by the Procurement Review Body of Bosnia and Herzegovina (Kancelarija, that is, Ured za razmatranje zalbi, KRZ or URZ), which has its seat in Sarajevo and branch offices in Banja Luka and Mostar. The Public Procurement Agency of Bosnia and Herzegovina is not an appellate body; its role is to monitor the application of the Law. Against a decision of the Review Body an administrative dispute lies before the Court of Bosnia and Herzegovina under Article 115, within thirty days; the procedure is urgent, the Court decides within sixty days, and a request for suspension of the decision may be made. The fee for drafting an appeal is calculated under the Tariff on the remuneration and reimbursement of costs of the work of attorneys (Tarifa o nagradama i naknadi troskova za rad advokata).

Legal positions of the case law

Extreme urgency justifying a negotiated procedure without publication must not originate with the contracting authority

Ruling: The circumstances relied upon to justify the exceptional urgency of a negotiated procedure without publication of a procurement notice must under no circumstances be connected with the contracting authority.

The Court examined Article 21 in conjunction with Article 18 of the Public Procurement Law of Bosnia and Herzegovina (Zakon o javnim nabavkama BiH). A negotiated procedure without publication is an exceptional procedure, available only where the situation could not have been foreseen by the contracting authority and was not caused by its own act or omission. The Court held that the suspension of parallel open procedures because appeals had been lodged against the tender documents is not such a circumstance, since it is attributable to the contracting authority itself. Article 21(1)(d) requires demonstrable reasons, so the authority must be able to explain and prove them once they are disputed. Under Article 18(1)(a) the decision initiating the procedure must state the statutory basis, and it is not enough to cite the article: the decision must give reasons showing that the statutory conditions are in fact met.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 031982 19 U of 16.09.2020

The estimated value of a procurement is determined by the contracting authority alone, according to the funds available to it

Ruling: It is the exclusive right of the contracting authority to determine the value of a public procurement in accordance with the financial means at its disposal.

The claimant argued that the estimated value was unrealistic and that the works could not be carried out within it. The Court rejected that objection: determining and estimating the value of a procurement is the exclusive power of the contracting authority. Under Article 53 the authority sets the criteria and standards according to its own needs, makes them available to tenderers through the procurement notice, and then considers only those tenders that satisfy the criteria contained in the tender documents. Requirements as to the subject matter are described through technical specifications, and any deficiency in that respect renders a tender unacceptable. The estimated value in this case had been fixed by the procurement plan for 2018 and could not be altered. Article 15(1) requires the estimate to be based on the total amount payable, excluding value added tax, and on the funds available.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 028700 18 U of 30.10.2019

A tender is unacceptable where a document or item of evidence required by the tender documents has not been submitted at all

Ruling: As regards form, a tender is rendered unacceptable where a particular document or item of evidence required by the tender documents has been omitted altogether.

The claimant had not submitted certified copies of the diplomas and licences required by the tender documents, nor confirmed references from investors evidencing that its experts had already performed works of the same or similar character and complexity. Those grounds were not contested; instead the claimant argued that the contracting authority should have sought clarification under Article 68(3) of the Public Procurement Law. The Court accepted that the authority may invite tenderers to clarify documents submitted under Articles 45 to 51 within three days, or to produce originals for comparison, in order to cure a formal defect. That power does not extend to the complete failure to submit a required certificate. Under Article 68 the authority must reject a request to participate or a tender that is incomplete or does not meet the requirements of the tender documents.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 033268 19 U of 04.03.2021

Grave professional misconduct may be proved by any means, without a final court judgment

Ruling: For the purpose of proving grave professional misconduct, a final judgment of the competent court is not required; contracting authorities are permitted to prove the breach in any manner, that is, by any means.

Article 45(5) of the Public Procurement Law (Official Gazette of BiH no. 39/14) requires the rejection of a request to participate or a tender where the candidate or tenderer has been guilty of grave professional misconduct committed within three years before the start of the procedure, which the contracting authority may prove by any means, in particular repeated significant shortcomings in performing essential contractual requirements leading to early termination, damage or similar consequences through intent or negligence of a certain gravity. The Law transposes Article 45(2)(d) of Directive 2004/18/EC, which likewise requires no final judgment. Following Court of Justice of the European Union judgment C-465/11 Forposta and ABC Direct Contact of 13 December 2012, grave misconduct denotes unlawful intent or serious negligence and calls for a specific and individual assessment of the operator's conduct. Here the misconduct was proved by an inspection report on a fatal workplace accident.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 031221 20 Uvp

Amended tender documents must be delivered to all interested tenderers

Ruling: The contracting authority is obliged to deliver the amended tender documents to all interested candidates, that is, tenderers, in the public procurement procedure.

Under Article 53(6) of the Public Procurement Law the contracting authority may amend and supplement the tender documents provided the amendments are delivered to interested candidates and tenderers on the same day, and at the latest five days before expiry of the deadline for receipt of requests to participate or tenders. Article 56(1) allows written requests for clarification at the latest ten days before that deadline, and Article 56(2) obliges the authority to answer in writing and to deliver the clarification to all candidates and tenderers who obtained the tender documents, within three days and at the latest five days before the deadline. In this case the clarification, which in fact amended the tender documents, was published only on the public procurement portal. That was contrary to Article 53(6), and the tenderer's failure to align its price schedule with the amendment justified rejection of its tender.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 031976 20 Uvp

Documents issued by the authorities of Kosovo cannot prevent a tenderer from participating in procurement in Bosnia and Herzegovina

Ruling: The validity of a public document issued by the authorities of Kosovo cannot and must not affect the freedom of the market or the movement of goods and services, nor can it prevent a tenderer from the Republic of Kosovo from taking part in public procurement procedures on the territory of Bosnia and Herzegovina.

The Court held that, in deciding whether documents issued by the authorities of the Republic of Kosovo could be accepted as valid, the respondent should have taken into account that both Bosnia and Herzegovina and Kosovo are parties to the CEFTA agreement. Article 1(2) lists among its objectives the expansion of trade in goods and services, the removal of barriers in trade, fair conditions of competition and the progressive opening of the parties' public procurement markets. Article 35(1) requires each party to ensure that procurement by its entities is transparent and reasonable and treats all suppliers of the other parties equally, and Article 35(2) requires treatment no less favourable than that accorded to domestic goods, services and suppliers. The absence of diplomatic relations is a separate legal question. European Union procurement law rests on non-discrimination and open competition, as do CEFTA and the Stabilisation and Association Agreement.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 031202 19 U of 05.11.2020

The contracting authority may ask the issuer to explain a certificate in order to remove doubt

Ruling: The contracting authority is empowered to request in writing an explanation of a certificate from its issuer and in that way to remove doubt as to whether the conditions under Article 45(1) of the Public Procurement Law are met.

Article 45(1) obliges the contracting authority to reject a request to participate or a tender where the candidate or tenderer has been convicted by a final judgment of organised crime, corruption, fraud or money laundering, is in bankruptcy or liquidation or has ceased business activity, or has not met its obligations regarding pension and health insurance contributions or direct and indirect taxes. Under Article 45(2)(d) the successful tenderer must submit certificates from the competent institutions confirming that due taxes have been paid; an agreement with the tax authorities on rescheduled or deferred payment is also accepted, together with confirmation that the tenderer is servicing the rescheduled obligations as agreed. Article 45(6) allows the authority, where it has doubts, to approach the competent bodies for information, and the Court read that as authorising a written request to the issuer to explain the certificate.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 033361 19 U of 02.02.2021

The value of a performed contract comprises the principal contract together with its annexes

Ruling: The value of a performed public procurement contract comprises the value of the principal contract and the value of its annexes, since annexes are concluded as additions to the principal contract and cannot exist in legal transactions without it.

The tender documents required at least one contract for routine road maintenance performed in the last three years with a value of not less than 1,100,000 KM excluding value added tax. The claimant produced a certificate for a contract worth 1,268,984.00 KM performed between 1 September 2015 and 31 August 2016, with two annexes. The Court held that splitting continuous works into those performed before and after 31 December 2015 was inappropriate: performance ended on 31 August 2016, so the contract fell within three years of the submission of the tender on 31 January 2019. Annexes are concluded as additions to the principal contract and cannot exist without it, so the contract value includes the annexes. Under Article 48(5) the contracting authority may require candidates and tenderers to explain their references in writing, and unclear evidence must be clarified before a tender is treated as unqualified.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 034356 20 U of 16.04.2021

Professional misconduct under Article 45(2)(d) does not require a final judgment

Ruling: In proving professional misconduct under Article 45(5) of the Public Procurement Law (Article 45(2)(d) of Directive 2004/18/EC), a final judgment of the competent court is not required; contracting authorities are permitted to prove the breach in any manner, that is, by any means.

The Appellate Administrative Panel confirmed the reading of Article 45(5) of the Public Procurement Law (Official Gazette of BiH no. 39/14): a request to participate or a tender is rejected where the candidate or tenderer has been guilty of grave professional misconduct in the three years before the start of the procedure, which may be proved by any means, in particular repeated significant shortcomings in performing essential contractual requirements that led to early termination, damage or similar consequences through intent or negligence of a certain gravity. Chapter VII, Section 2 of Directive 2004/18/EC is to the same effect. Relying on Court of Justice of the European Union judgment C-465/11 Forposta and ABC Direct Contact, the Court held that serious misconduct means conduct involving unlawful intent or serious negligence, established through a specific and individual assessment. Here the assessment rested on an inspection report of 07.05.2018 concerning a workplace accident.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 031914 20 Uvp of 16.03.2021

Evidence of equivalence of the offered subject matter is to be provided by the tenderer

Ruling: Evidence of equivalence, in the sense of compliance with the requirements relating to the subject matter of the procurement, must be provided by the tenderer in accordance with the requirements defined in the tender documents.

Under Article 54(1) and (9) of the Public Procurement Law, technical specifications must afford all tenderers equal and non-discriminatory access to competition; references to a particular producer, origin, process, trade mark, patent or type are permissible only where the subject matter cannot otherwise be described sufficiently precisely, and must then always carry the words "or equivalent". Under Article 54(3) and (4) the authority may not reject a tender on the ground that the goods do not match the specifications where the tenderer proves by appropriate means, such as a technical dossier or a test report from an authorised body, that its solution meets them to the same extent. A price schedule listing a named cleaning product together with "or equivalent" therefore did not restrict competition. A tenderer could also seek clarification under Article 56(1) and (2). Products named as examples count as offered if no alternative is entered.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 026070 17 U of 29.01.2019

The right to inspect the tenders of other tenderers serves the legal protection of participants

Ruling: The essence of the right to inspect the tenders of other tenderers is to enable all participants in the procedure to acquaint themselves with all the facts of the procedure that could have influenced its outcome, with the aim of securing adequate legal protection.

Under Article 11(5) of the Public Procurement Law the contracting authority must, after the decision on selection or on annulment is received and at the latest until the appeal deadline expires, allow inspection of every tender within two days of a tenderer's request, including documents submitted under Article 45(2) and clarifications under Article 68(3), with the exception of information designated as confidential. Although copying is not regulated in detail, Article 117 provides for the subsidiary application of the Law on Administrative Procedure of BiH to proceedings before the Review Body, and Article 72(1) of that law entitles parties to inspect and photocopy the case file at their own expense under supervision. As the tender documents were not designated confidential, refusing to allow copying unlawfully restricted the appellant's rights, irrespective of whether inspection would have altered the ranking.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 032657 19 U of 05.11.2020

A negotiated procedure based on exclusive rights is permissible only where a single tenderer alone can perform the procurement

Ruling: The contracting authority may award a procurement contract through a negotiated procedure without publication of a procurement notice on grounds relating to the protection of exclusive rights only if it proves that no one other than one particular tenderer can perform the procurement in question, because that tenderer alone is the holder of the exclusive right.

Article 21(1)(c) of the Public Procurement Law permits a negotiated procedure without publication where, for substantive and demonstrable technical or artistic reasons, or for reasons relating to the protection of exclusive rights, the contract can be awarded only to a particular supplier. Article 3 of the Regulation on the application of the negotiated procedure without publication of a procurement notice confirms that the procedure is an exception available only where the statutory conditions are met, and calls for detailed written reasons from the authorised persons. Here the contracting authority produced no evidence, either in the administrative proceedings or in the administrative dispute, that only the named supplier could carry out the software upgrade as holder of the source code. Under Article 102(2) the burden lies on the contracting authority to prove the facts and circumstances underlying its decision, and that burden was not discharged.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 032678 19 U of 20.10.2020

Every tenderer must enjoy an equal position and an equal opportunity to be selected

Ruling: In public procurement procedures every tenderer must have the same position and the same opportunity to take part in the procedure under equal conditions, and also to be selected as the most advantageous tenderer.

The tender documents required at least three completed consultancy projects on information systems and technical specifications carried out for three different national health insurance funds within the last three years. The Court held that such a requirement restricts genuine competition and favours a particular tenderer, and that the contracting authority offered no justification for it. Under Article 44(2) the authority defines minimum qualification requirements as to personal capacity, economic and financial standing and technical or professional ability, and under Article 44(3) those requirements and the supporting documents must be proportionate to the subject matter of the procurement, must not restrict competition and must be clear and precise. Article 53 requires complete information enabling tenders to be prepared on a genuinely competitive basis, while Article 3 obliges the authority to secure fair and active competition, equal treatment, non-discrimination and transparency throughout the procedure.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 033783 20 U of 11.01.2021

An appeal lodged by a person who did not obtain the tender documents in due time is inadmissible

Ruling: An appeal against the tender documents lodged by a person who did not obtain those documents in due time, within the period set by the contracting authority, is inadmissible.

Under Article 42 of the Public Procurement Law the contracting authority sets the remaining time limits in negotiated procedures, competitive dialogue and design contests so that candidates and tenderers have sufficient time to act and prepare tenders, depending on the complexity of the subject matter. Having published the tender documents for the second stage of the negotiated procedure on 20 August 2019, the authority set 31 August 2019 as the final date for obtaining the invitation to submit an initial tender. The claimant obtained it on 5 September 2019, after that date, and therefore never acquired standing to appeal against the documents. Under Article 100(2) an appeal that is out of time, inadmissible or lodged by an unauthorised person is rejected by a formal ruling, against which an appeal lies to the Review Body within ten days. The claimant also failed to substantiate its legal interest under Article 102(3).

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 034239 20 U of 06.04.2021

Damages are governed by the legislation in force on the date the claim is submitted

Ruling: The time, that is, the date of submission of the claim for damages is the decisive moment for assessing which substantive legislation applies.

The claim for damages was submitted on 12 December 2014 and decided on 28 January 2015. Since proceedings for damages commence with the submission of the claim, and the claim was filed fourteen days after the new Public Procurement Law became applicable on 28 November 2014, the respondent had to decide under the new Law. Article 122(3) preserves the former Law only for proceedings for damages commenced before the new Law became applicable, and Article 125 fixed its entry into force and the six month deferral of application. Article 122 directs a participant who has suffered loss through a breach of the Law to pursue damages for lost profit before the competent court under the general rules on liability. Administrative procedure is regarded as commenced when a properly drawn claim is filed, and the court reviews the act by reference to the legislation in force when it was adopted.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 018429 15 U of 09.06.2016

A tenderer may rely on the capacities of other entities to prove that the required resources are available

Ruling: Where the contracting authority stipulates that a tenderer must possess (have at its disposal) certain resources, the tenderer may rely on the capacities of other entities as proof to the contracting authority that it will have the necessary resources at its disposal.

The tender documents required tenderers to possess, that is, to have at their disposal, petrol stations in the municipalities where the contracting authority has organisational units, and to submit a signed and certified list of them. The appellant submitted the required statement together with business cooperation agreements proving that it had the capacities of those stations at its disposal. The Court held that Article 48(4) of the Public Procurement Law expressly allows tenderers to rely on the capacities of other entities, and that this was appropriate precisely because the contracting authority had itself framed the requirement as possession or availability rather than ownership. The objection that fiscal receipts for the fuel supplied were issued by an entity with no contractual relationship to the authority was rejected, since in this dispute the Court reviews the legality of the contested ruling adopted in the procurement procedure.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 037581 20 U of 09.02.2021

The Public Procurement Agency has no competence over an appeal for administrative silence, nor over the enforcement of decisions of the Review Body

Ruling: The Public Procurement Agency has no competence to decide on an appeal by a tenderer in a public procurement procedure lodged on the ground of administrative silence, nor is it competent to see to the enforcement of decisions of the Procurement Review Body.

Article 91 of the Public Procurement Law names the Agency and the Review Body as the institutions responsible for monitoring the application of the Law, Article 92(3) lists the Agency's tasks in ensuring its proper implementation, and Article 93(8) confers on the Review Body the power to decide appeals in procurement procedures. Under Article 116(1) the Review Body files misdemeanour charges where it establishes breaches of the procedure, and Article 116(2)(n) provides for a fine of 1,500.00 to 15,000.00 KM for a contracting authority that fails to implement a decision of the Review Body. The Agency's competence is limited to monitoring and to procedures in which no appeal was lodged. Faced with an appeal for silence after its own decision had not been implemented, the Review Body could have acted under Article 116 or, through Article 117, under Article 208 of the Law on Administrative Procedure.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 033327 19 U of 17.02.2021

Division of a procurement into lots is a power to be assessed in the light of the principles of public procurement

Ruling: The possibility of dividing a procurement into lots is a power and not an obligation of the contracting authority, but that power cannot be exercised in a summary manner and must be viewed in the light of the principles of public procurement, in particular Article 3 of the Public Procurement Law.

Article 16(1) of the Public Procurement Law provides that, if the contracting authority divides the subject matter into lots, all lots must be indicated in the tender documents so that tenderers may bid for one, several or all of them. The division is thus permitted but not required; the authority must not split a procurement in order to obtain other advantages or to avoid the prescribed procedure, and items within a lot should be homogeneous. Here fixed and mobile telephony were procured together although the two services are provided under different licences from the Communications Regulatory Agency. The Court found that the respondent had not answered whether that single procurement favoured a particular tenderer or discriminated against others, and noted that on identical facts the respondent had reached an entirely different conclusion in another case, which is impermissible and creates legal uncertainty.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 026403 17 U of 16.05.2019

The Review Body cannot annul a public procurement contract, because annulment falls within the exclusive competence of the courts

Ruling: The power of the respondent Procurement Review Body to annul a contract under Article 111 of the Public Procurement Law is in direct conflict with Article 72 of the same Law. Article 72(2) provides that a public procurement contract is concluded in accordance with the laws on obligations in Bosnia and Herzegovina, and under those laws the annulment of a contract falls within the exclusive competence of the courts.

The contested ruling annulled a concluded contract by reference to Article 111 without giving any reasons and without addressing the fact that the contract was in force. Article 72(2) provides that a public procurement contract is concluded in accordance with the laws on obligations, and Article 118 subjects the parties' liability for performance to those laws, under which annulment lies with the courts alone. The Law does not regulate the consequences of annulment, the manner of enforcement or its effect on the contracting parties. Article 111(4) to (6) allows the Review Body to leave a contract in force where overriding reasons of general interest so require, imposing a fine instead. Had the Review Body found any decision in the procedure unlawful, it could have recorded that and remitted the case without annulling the contract, which concerned a software platform for 500,000 consumers.

Source: Court of Bosnia and Herzegovina, Judgment no. S1 3 U 036550 20 U of 21.01.2021

How the office assists

Law Office Prnjavorac is based in Tuzla and acts for tenderers and for contracting authorities in public procurement matters throughout Bosnia and Herzegovina, in both the Federation of Bosnia and Herzegovina and the Republika Srpska: reviewing tender documents before the deadline for questions expires, drafting appeals to the contracting authority and to the Procurement Review Body, challenging decisions on the award of contracts and on annulment of a procedure, and conducting administrative disputes before the Court of Bosnia and Herzegovina. The office regularly acts for clients based in Germany, Austria, Switzerland, other European Union member states and the United States, including companies taking part in procurement procedures in Bosnia and Herzegovina for the first time. Instructions can be given by email and the matter can be conducted under a written power of attorney, so that no travel to Bosnia and Herzegovina is required; because the time limits for appeal are short, it is advisable to make contact as soon as the tender documents or the decision on the award are received.

Related pages

• Legal services of the office (in Bosnian)
• Case law of Bosnia and Herzegovina, main page (in Bosnian)
• Administrative law (in Bosnian)
• Administrative law, case law (in Bosnian)
• Judgment on public procurement in Bosnia and Herzegovina (PDF) (in Bosnian)
• Tariff for drafting an appeal in public procurement (in Bosnian)
• Public Procurement Law of Bosnia and Herzegovina (PDF) (in Bosnian)
• Laws of Bosnia and Herzegovina (in Bosnian)

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