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Amending of the Directive for review in the public and utilities’ sector
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- 2.5.2.10 The new Directives
- 2.5.2.10.i Major changes introduced by new Directives
- 2015 94 CHAPTER III PUBLIC PROCUREMENT PROCESS, RULES ACCORDING TO THE ALBANIAN SYSTEM; SIMILARITIES AND DIFFERENCES WITH THE
- 3.1.1.a Prohibition against discrimination on grounds of nationality
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2.5.2.9 Amending of the Directive for review in the public and utilities’ sector Again, in the frame of consolidating and increasing the certainty of bidders in procurement procedures in both the Public Sector and the Utilities’ Sector, Directive 2007/66/EC 303 amended directives 89/665/EEC and 92/13/EEC, which, as analyzed earlier, regulated the review process respectively in the Public Sector and the Utilities’ Sector. The aim of this amendment was the strengthening of mechanism to guarantee transparency and non-discrimination, as two essential principles to be achieved by the respective Review Directives, as well as the aligning with the positive effects introduced by the modernization and simplification of rules in public procurement, by Directives 2004/18/EC and 2004/17/EC. The main change made by Directive 2007/66/EC is the 303 OJ 2007 L 335/31 Impact of European Union public procurement legislation on the Albanian public procurement system 2015 90 obligatory deadline set for the submission of complaints (period of suspension of the procurement procedure), with the purpose of assuring an effective mechanism for the protection of the rights of economic operators, making offers in a procurement procedure. 2.5.2.10 The new Directives On 26th February 2014 the European Parliament and the Council adopted new rules on public procurement and concession contracts as follows: - Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing directive 2004/18/EC, - Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing directive 2004/17/EC, and - Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts 304 . The new directives repeal and replace the Public Sector Directive 2004/18 and the Utilities Directive 2004/17 and amend the Remedies Directives 89/665 and 92/13 (mainly with regard to the extension of remedies and review of measures to services concession covered by the new concession directive). Those three new directives will have to be transposed to legal orders of Member States, in principle, within 24 months following their entry into force. A longer time period for transposition is available for the mandatory electronic communication in procurement procedures (54 months since the entry into force of the directive). The new concession directive covers, for the first time in the EU law, in a comprehensive manner, both works concessions as well as service concessions. It codifies the rich case law of ECJ/CJEU on concessions but offers some discretion as for the precise way how the procedures leading to award of concessions are to be designed in Member States. 2.5.2.10.i Major changes introduced by new Directives The main changes introduced by new Directive 2014/24/EU in general can be summarized as follows 305 : The distinction between priority (Part A) and non – priority (Part B) services has been removed, and a new light-touch regime has been introduced, albeit, only for social and other “special services”. Under those rules, there is mandatory advertising of bidding opportunities in the Official Journal of the European Union and other specific obligations 304 The three Directives are published in OJ L 94, dated 20.03.2014 and entered into force on April 17, 2014. 305 See generally R. Williams “Modernising the EU public procurement regim- A summary of the key changes to the public sector”, Public Procurement Law Review, 2014, 3, Sweet & Maxwell, London 2014, pg. NA79-NA83. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 91 concerning the award of those services; new rules apply, however, as of a threshold much higher than in the case of other services covered by the directive (EUR 750 000); in the case of Utilities the threshold for equivalent services is EUR 1 000 000. The new directives offer more freedom to public purchasers to negotiate – constraints on using the competitive negotiated procedure have been relaxed, so that this procedure is available for any requirements that go beyond “off - the - shelf” purchasing. A much simpler process of assessing credentials of candidates and bidders has been introduced, involving greater use of suppliers’ self-declarations, and where only the winning bidder shall have to submit various certificates and documents to prove its status; Poor performance under previous contracts is explicitly permitted as ground for the exclusion of an economic operator; The rules on the Dynamic Purchasing Systems (DPS) have been greatly simplified, with the removal of the onerous obligation to OJEU-advertise call-off contracts made under the DPS; The ability to reserve the award of certain services contracts to social enterprises for a time limited period has been introduced; Electronic marketplaces for public procurement are expressly permitted, removing any doubt as to their legality; The statutory minimum time limits by which suppliers have to respond to the advertised procurements and submit tenders or requests have been reduced by about a third. This flexibility could be helpful for speeding up simpler or off-the-shelf procurements, but it still permits longer timescales for procurements, where bidders will need more time to respond; Review of thresholds: The directive includes a binding commitment on the Commission to review the economic effects on the internal market as a result of the application of thresholds, which could lead to an increase of the thresholds that have been broadly static for 20 years. Legal clarity so that public buyers can take into account the relevant skills and the experience of individuals at the award stage where that is relevant (e. g. for consultants, lawyers, architects, etc.); Improved rules on social and environmental aspects 306 have been designed, making it clear that: - social aspects can now also be taken into account in certain circumstances (in addition to environmental aspects, which had previously been allowed), 306 In addition to “primary” objective such is to get best value for money, public procurement can also be used strategically to promote specific collateral or “secondary” economic goals such as social and environmental aspects. See further A. Mille “Collateral Objectives in Public Procurement: Social and Environmental Aspects”, Public Procurement in the European Union, NWV Neuer Wissenschaftlicher Verlag, Vien, Graz 2006, pg. 489-497. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 92 - contracting authorities can require certification/labels or other equivalent evidence of social/environmental characteristics, further facilitating the procurement of contracts with social/environmental objectives, - and refer to factors directly linked to the production process; The electronic communication / e-procurement will become mandatory following 54 months after the directive’s entry into force; Various safeguards from corruption are required such as: - specific safeguards against conflicts of interest where declarations are signed by procurement staff to confirm they have no outside interests with bidders etc.; - similar provision against illicit behavior by candidates and tenderers, such as attempts to improperly influence the decision-making process or collusion, - safeguards against undue preference in favor of participants, who have advised the contracting authority or been involved in the preparation of the procedure, - self-cleaning measures for suppliers, who have cleaned up their bad practices; The contracting authorities are encouraged to break contracts into lots to facilitate SME participation, but there is discretion not to do so where appropriate; The new rules encourage and allow preliminary market consultation between buyers and suppliers, which should facilitate better specifications, better outcomes and shorter procurement times; A turnover cap to facilitate SME participation is imposed. The contracting authorities are not allowed to set company turnover requirements at more than two times the contract value; A new procedure has been introduced: the “Innovation Partnership” procedure. This is intended to allow scope for more innovative ideas. The supplier essentially bids to enter into a partnership with the authority, to develop a new product or service; Public authorities will no longer have to submit detailed annual statistics on their procurement activities. The European Commission will collect this information directly from the online system, thereby freeing up valuable time and resources for public authorities; Utilities contracts directive has partly amended scope – exploration of oil and gas was removed from the scope of covered activities; The exemption related to bus services offered in the competition condition, which was kept by the 2004 Utilities Directive has been removed – all activities are subject now to uniform set of rules allowing for their exemption on the basis of the Commission decision; The competitive dialogue was added to the list of procedures available to contracting entities under the new Utilities Directive; The new directive on concessions covers both works and services concessions; The Remedies Directives were changed in order to adjust the scope of contracts covered by the Remedies Directives resulting from the adoption of the new Concessions Directive. The new directives provide for mostly mandatory rules that have to be implemented by Member States. The room for discretion has been greatly reduced as compared to 2004 Impact of European Union public procurement legislation on the Albanian public procurement system 2015 93 directives, which means that Member States have less options available when it comes to decide whether and when to adopt specific rules. Many provisions that were optional under the 2004 directives became mandatory in accordance with 2014 directives. It is mainly the case of procedures and tools available to the contracting authorities. 2.6 Summary As described above, initial regulation of public procurement in Albania dates back to the ’30 of the last century. In 1995, after an interruption of more than 50 years, a law on public procurement was approved. However, only in 2006, a law aiming approximation with the EU Directives was adopted. The approximation process has been gradual. In almost 8 years of its existence, this law has gone through several amendments, aiming at progressively approximating the Directives. The approximation is still partial. The reasons are analyzed in the following chapters. On the other hand, all what is described above shows the way followed by the public procurement system in the European Union and its Member States from the beginning up to nowadays. It is evident that the public procurement system has been known within the EU for more than 50 years, and it is a system, which has undergone drastic changes and improvements to reach the actual procurement system of today. The description and history of the development of this system show clearly that the full assimilation of the EU procurement system by its Member States has been and is still done gradually and in parallel with the consolidation of the EU itself 307 and the improvement of its public procurement system. What can be said in certainty is that the public procurement system is a dynamic system, in continuous change and improvement. 307 See generally A.S. Sweet and W. Sandholtz “Integration, Supranational Governance, and the Institutionalization of the European Polity”, The European Union – Readings on the Theory and Practice of European Integration, Third Edition, Lynne Rienner Publishers, Inc, U.S.A, 2003, pg. 215-238. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 94 CHAPTER III PUBLIC PROCUREMENT PROCESS, RULES ACCORDING TO THE ALBANIAN SYSTEM; SIMILARITIES AND DIFFERENCES WITH THE CORRESPONDING EU LEGISLATION 3. Introduction The definition of special rules for the management of public funds aims at minimizing the non-necessary costs on the state budget and the optimization of price and quality of the required good, service or work. Taking into consideration the main definition of public procurement, and analyzing the elements of the public contract 308 , it is understandable that to happen a public procurement, concrete needs should be known. To make these needs known to the private sector, a contracting authority should describe them by using technical specifications. Once the needs are identified, the contracting authority should further describe the requirement that economic operators should meet, to be qualified to perform the contract at issue. After deciding on the characteristics of needs and the qualification criteria, the contracting authority should launch a procurement procedure and run the selection process. To complete this process and award the contract, another necessary decision to be made by the contracting authority, is deciding on the awarding criteria to be used. The entire process should be based on procurement principles. As one of the most important principles, the transparency principle is concerted into concrete requirements, as are those on advertising relevant notices of a procurement procedure. These entire concepts reflect the activities prior to the conclusion of the contract and are very crucial for the achievement of the procurement objectives. All these concepts will be discussed in details, here below 309 . 3.1 Public Procurement principles Since its origins, one of the main objectives of the EU has been to create a common market that eliminates barriers to trade in goods and services between EU Member States. Creating a common procurement market means removing any barriers to trade arising from the procurement context 310 . The barriers to trade can be erected by means of the legislation or by the actions of contracting authorities or economic operators. Legislation can create barriers by imposing “buy national” requirements. Contracting authorities can impose barriers by making 308 See Chapter I ‘Role of Public Procurement”. 309 Considering that the Albanian PPL is approximated with the Directive 2004/18/EC, the analysis in this chapter will be made mainly referring to the relevant provisions of this Directive. Meanwhile, in Chapter V, where, among others, the need for further approximation of the PPL will be analyzed, this analysis will be made referring to the provisions of the new Directive 2014/24/EU. 310 The ECJ in the case C-360/96 (n. 54 above), has held that ‘The purpose of coordinating at Community level the procedures for the award of public service contracts is to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State, who wish to offer goods or services to contracting authorities in another Member State’. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 95 discriminatory award decisions. Economic operators can also create barriers by colluding together to rig tender prices. All of these barriers have the effect of distorting the competition in the common procurement market, and one of the primary purposes of public procurement legislation is to eliminate the existing barriers and prevent the erection of new barriers. It does so by applying the basic principles flowing through the legislation. 3.1.1 Principles of the Treaty of Functioning of the European Union (TFEU), affecting public procurement As discussed in the previous chapter, the Treaty of Rome (and subsequent treaties amending the Treaty of Rome) 311 (hereafter referred to as the Treaty of Functioning of the European Union-TFEU) does not include any explicit provisions relating to public procurement. That does not mean, however, that it does not contain provisions that affect public procurement within the EU. On the contrary, the TFEU establishes a number of fundamental principles that underpin the EU 312 . These principles apply equally to the field of public procurement 313 . Of these fundamental principles, the most relevant in terms of public procurement are: 3.1.1.a Prohibition against discrimination on grounds of nationality According to the TFEU 314 ‘within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination’. This principle is without prejudice to other more explicit provisions such as those relating to the freedom of establishment 315 , which contain their own non-discrimination requirements and is thus not applied independently 316 . It embodies a standard of national treatment that ‘requires persons in a situation governed by the Community law to be 311 Treaty of Rome 1957, Establishing the European Community, as amended by the Single European Act 1986, The Treaty of Mastricht 1992, officially known as the Treaty on European Union (TEU), the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. When the Treaty of Lisbon came into force in 2009, the pillar system was abandoned, and hence the EC ceased to exist as a legal entity separate from the EU. This led to the Treaty being amended and renamed as the Treaty on the Functioning of the European Union (TFEU), as amended. 312 See for example article 18 of the consolidated version of the TFEU (ex article 12 of the TEC), articles 26-29 (ex articles 14, 15, 23 and 24 of the TEC), articles 49 and 50 of the TFEU (ex articles 43 and 44 of the TEC) and article 56 of the TFEU (ex article 49 of the TEC). 313 See also S. Arrowsmith “Law of Public and Utilities Procurement”, Volume 1, Third Edition, Sweet & Maxwell, London 2014, para. 3-08. 314 See article 18 of the TFEU (ex article 12 of the TEC). 315 See article 49 of the TFEU (ex article 43 of the TEC). 316 See case 307/87 Commission v Greece [1989] ECR 1461. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 96 placed on a completely equal footing with nationals of an EU member state’ 317 . In any case, this article applies only to Community nationals, individuals and legal persons 318 , who are resident in any of the Member States of the Community. Nationals from third countries are excluded from the protection provided by this principle because they are ‘not within the scope of application of this Treaty’ 319 . According to this principle, in a procurement context, an economic operator from one member state must be treated in the same way as an economic operator from the contracting authority’s member state. This is not the same as the principle of equal treatment 320 , which does not rely on the concept of nationality. 3.1.1.b Free movement of goods and prohibition of quantitative restrictions on imports and exports and measures having an equivalent effect The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties 321 . On this regard, the Union shall comprise a customs union, which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having an equivalent effect, and the adoption of a common customs tariff in their relations with third countries 322 . The provisions relating to the free movement of goods apply both to products originating in Member States and to products coming from third countries 323 , which are in free circulation in the Member States 324 . Thus, unlike the provisions of the Treaty relating to non-discrimination, which exclude from the protection provided by this principle nationals from third countries, the provisions relating to the free movement of goods, does provide for protection for non-Community goods, which are in free circulation within the Community 325 . 317 See case 186/87 Ian William Cowan v Tresor Public [1989] ECR 195 at 219. 318 According to article 54 of the TFEU (ex article 48 of the TEC), para.1 ‘companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States’. 319 See case 136/78 Ministere Public v Vincent Auer [1997] ECR 437 at 447; case 271/82 Second Auer Case [1982] ECR 2727; case 115/78 Knoors v Staatssecretaris voor Economische Zaken [1979] ECR 399 at 407. 320 This principle will be treated further below. 321 See article 26 of the TFEU (ex article 14 of the TEC), para. 2. 322 See article 28 para 1 of the TFEU (ex article 23, para.1 of the TEC). 323 See article 28 para. 2 of the TFEU (ex article 23, para.2 of the TEC). 324 According to article 29 of the TFEU 9ex article 24 of the TEC), Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect, which are payable, have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges. 325 See also S. Arrowsmith “Law of Public and Utilities Procurement”, Volume 1, Third Edition, Sweet & Maxwell, London 2014, para. 4-05 and 4-06. Impact of European Union public procurement legislation on the Albanian public procurement system Download 5.49 Kb. Do'stlaringiz bilan baham: 
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