Outsourcing of activities by means of contracting out
Due to the above specifics, the contracts concluded in the process of
outsourcing are complex by nature. Their complexity comes out of the fact that
they comprise elements of several contracts. In other words, the outsourcing
contracts may show elements of more that one type of contract, for example:
lease, manufacturing, rent, service, delivery, sale and purchase agreement, etc.
Although not recognized in practice, in case a person has several
enterprises there are no legal restrictions that one of them becomes subject to
outsourcing. In this case the contract for transfer of the enterprise to
the new contractor shall have as a subject:
Change in ownership of a separate part of an enterprise;
Rent, lease or concession of a separate part of an enterprise.
Usually, the above mentioned methods are applied through conclusion of a
contract between the outsourcing company and a contractor chosen by it. The form
of the contract as well as the need for additional actions to be done after the
transfer depend on the respective case: does the activity transfer involve the
transfer of real estates (notary deeds for transfer of rights over real
estates), transfer of an enterprise as provided in article 15 of the Commercial
Act (contract in writing with notary certified signatures), or transfer of the
activity on the basis of a contract concluded under the Public Procurement Act
(contract in writing)? Generally, freedom of contract applies to the choice of a
contractor and the negotiation of the specific terms and conditions of the
transfer.
There are some specifics when the outsourcing company has an assignor
status under the Public Procurement Act (PPA) and the activity subject to
outsourcing is within the items listed in PPA.
In this case the selection of contractor and the procedure for conclusion
of the contract should strictly follow the provisions of PPA. Thus the
outsourcing process is impeded and complicated to a certain extent due to the
following reasons:
1. PPA
prescribes the type of procedure: îpen, limited or procedure of negotiations.
The Act also specifies whether the procedure shall follow PPA or the Regulation
on the small procurement orders;
2.
Need to observe PPA requirements on: publication and content of the invitation
to bidders; procedure for assessment and ranking of the candidates;
3.
Strictly following the time periods specified in PPA;
4.
Possibility for challenging the decision of the assignor, which may delay the
outsourcing process or result in need for a new procedure;
5.
Limited opportunity for subsequent negotiating of the terms and conditions of
the contract due to the fact that the latter is part of the bidding
documentation. Lack of flexibility is presupposed also by the fact that parties
are bound by the requirements of the law, the bidding documentation and the
candidate’s proposal approved by the assignor;
6.
Limited opportunities for the assignor to terminate the procedure once announced
or to refuse to conclude a contract, provided at least three candidates
submitted proposals.