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Part B, Section I of Directive 2014/24/EU
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- 3.2.3 Summary
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Part B, Section I of Directive 2014/24/EU.
431 See article 35 of Directive 2004/18/EC and article 48 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 118 mentioned, this is an option for the contracting authorities of the Member States, and as such use of Prior Information Notices is therefore voluntary and not obligatory 432 . The Albanian PPL does not provide for such an instrument. If analyzed in the context of the obligation and commitments undertaken in the SAA, it will not be the case of ‘non- approximation’ as this is optional even for Member States. On the other hand, if it is the case that Albanian law will provide for such mechanism anyway (even though it is not obligatory), in practice it will not be possible to implement it, because it is required that the notice itself, or the fact of publication of this notice on the buyer profile, should be published in any case, by the Publications Office of the European Union. As such, it seems that this mechanism is meant only for states, which are subject of the Directive, and there is no sense to require a non-member state to introduce such a mechanism in its national procurement law. Although the Albanian PPL does not provide for the possibility of publication of a prior information notice as such, it provides in its secondary legislation the obligation for the contracting authority to publish at PPA website at the beginning of the budgetary year, the forecast register 433 . The content and the format of this register is approved by PPA and published at its website and it gives information on the object of the contract, the public procurement procedure that will be followed, the estimated fund, and the estimated launching time 434 . In any case in the forecast register, the contracting authorities should publish all kind of procedures despite the value (including the small value purchases). Publication of such information at the beginning of the year goes in line with the principle of transparency and in concrete terms its aim is the same as mentioned above, to benefit both, the contracting authority and potential economic operators as on one hand economic operators that have been given an advance warning of potential opportunities can also plan accordingly and on the other hand this planning assists in ensuring good levels of competition and better outcomes in terms of value-for-money for the contracting authority. 3.2.2 Contract notices and contract award notices As discussed in the beginning of this section, in any case that contracting authorities wish to award a public contract shall make known their intention by contract notices 435 . This rule is applicable for all kinds of procurement procedures, provided by the respective legislation, except for negotiated procedures without the prior publication of a contract 432 Publication of the prior information notices shall be compulsory only where the contracting authorities take the option of shortening the time limits for the receipt of tenders. 433 See article 4 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 434 See at https://app.gov.al/Model_Regjistri.aspx . 435 On many occasions the ECJ expressed its view on the obligations of contracting authorities regarding the transparency in public procurement realized through publication of procurement notices. See for example case C – 24/91 Commission of the European Communities v Kingdom of Spain. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 119 notice 436 . The Contract Notice is an extremely important part of the procurement process. It marks the commencement of the formal procurement process for a specific contract and notifies potential economic operators of the concrete opportunity to participate in the procurement process. To ensure as much competition as possible and to comply with the basic requirements for transparency, the Contract Notice must be drafted in a way that clearly describes the nature, scope and estimated value of the contract and how economic operators can apply to participate in the process 437 . The Contract Notice must also be completed fully and correctly 438 . Failure to draft a clear, complete and compliant Contract Notice could result in a disappointing level of competition, poor quality or inappropriate tenders, or a flawed procurement process that might have to be re-started. In cases when there is a need for correction or changing of the contract notice and all the subsequent information, another notice should be published 439 . This implies a requirement to notify all potential tenderers of any revision so as not to favor one tenderer in particular 440 . In any case, it is important to consider carefully the impact of any changes that the contracting authority proposes to refer to in the amending notice. Should any corrected or added information lead to a substantial change of the conditions provided for in the original contract notice with a bearing on the principle of equal treatment and on the objective of competitive procurement, it would be necessary to extend the originally foreseen deadlines 441 . There are no specified minimum and maximum time periods for publishing a Contract Notice 442 , but there are statutory time limits that start on the date of dispatch of the Contract Notice and vary on the type of the concrete procedure 443 . 436 See article 38(1) of the Albanian PPL and respectively article 35 (2) and (3) and article 49 of Directive 2004/18/EC and Directive 2014/24/EU. 437 Both the Albanian PPL and relevant Directives set out the required content for Contract Notices and refer to the standard forms that must be used. The standard format Contract Notice is used for the majority of procurement processes, but there are different formats for different types of procurement. These standard forms are published respectively by the Public Procurement Agency in Albania on its website at www.app.gov.al and by the European Commission on its website at www.simap.europa.eu . See article 39 of the Albanian PPL and respectively article 36 (1) and article 49 of Directive 2004/18/EC and Directive 2014/24/EU. 438 According to the Albanian PPL the contract notice is always associated by the Standard Tender Documents, which include all the necessary information needed by potential tenderers. See article 41 of the PPL and articles 10 and 11 of the Decision of Council of Ministers no. 914, date 29.12.2014 “Rules on Public Procurement”. 439 See article 42 (1) and (2) of the PPL and standard forms available on the Commission’s Simap website (see form number 14). 440 See case C-87/94 Commission of the European Communities v Kingdom of Belgium ‘Walloon Buses’ [1996] ECR I-2043. 441 According to article 42 (2/1) of the PPL ‘in any case, when tender documents are modified, contracting authorities shall extend the time limit for the submission of tenders, by 5 days, whereas for procurements above the high monetary thresholds by 10 days’. See also The standard form notices according to the respective Directives, available on the Commission’s Simap website www.simap.europa.eu . 442 In cases when contracting authorities of Member States wish to rely on the combination of a Prior Information Notice and a Contract Notice so as to reduce statutory tender time scales, then there are specified, statutory minimum and maximum periods permitted between publishing a Prior Information Impact of European Union public procurement legislation on the Albanian public procurement system 2015 120 Under the light of the transparency principle, except for the contract notices, contracting authorities should advertise the conclusion of a contract in a specific procurement process by using a Contract Award Notice 444 . This final notice is important because it ensures the transparency of the process, as economic operators and others are made aware that the procurement process has been concluded and on what basis 445 . This information is also used to prepare statistical data on the level and nature of the procurement activity and to monitor procurement processes. Differently from the referred Directives, the Albanian PPL does call for two types of notices at the end of the procurement procedure; the ‘winner notice’ and the ‘contract signed notice’ 446 . The division of the ‘winner notice’ and ‘contract signed notice’ in two separate steps, is done more in statistical perspective, to evaluate in how many procedures that end up with a winner, a contract is really concluded. The legislation (both PPL and the respective Directives) sets out the content for the Contract Award Notices and refers to the standard forms that must be used 447 . The contract award notices should be published according to time limits set by the given legislation. According to Directive 2004/18, contracting authorities, which have awarded a public contract or concluded a framework agreement 448 , shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement 449 . Directive 2014/24 has shortened this time frame in ‘30 days after the award of the contract or the conclusion of the framework agreement’ 450 . The Albanian PPL, on the other hand, is much more stricter in setting these time limits, as it provides that ‘the winner notice’ should be sent for publication within 5 days from the day the winner has been awarded 451 and ‘the contract signed Notice and publishing the related Contract Notice. See respectively, article 38 (4) and articles 27-29 of Directive 2004/18/EC and Directive 2014/24/EU. 443 See article 43 of the PPL and respectively articles 38 and articles 27-29 of Directive 2004/18/EC and Directive 2014/24/EU. 444 See respectively article 35/4 and article 50 of Directive 2004/18/EC and Directive 2014/24/EU. 445 See case C-160/08 Commission v. Germany, ECR [2010]. 446 See article 58 of the PPL and articles 11 and 25 of the Decision of Council of Ministers no. 914, date 29.12.2014 “Rules on Public Procurement”. 447 The standard forms are published respectively by Public Procurement Agency in Albania on its website at www.app.gov.al and by the European Commission on its website at www.simap.europa.eu . 448 In cases of the contract award or conclusion of the framework, certain information can be withheld from publication. This is where publication would impede law enforcement, or be contrary to the public interest, or would harm the legitimate commercial interests of the economic operators (economic operators or public sector), or might prejudice fair competition. See respectively, article 35/4 and 50/4 of Directive 2004/18/EC and 2014/24/EU. 449 See article 35/4 of the Directive 2004/18/EC. 450 See article 50/1 of the Directive 2014/24/EU. 451 See article 58/2 of the PPL. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 121 notice’ should be sent for publication within 5 days from the day the contract has been signed 452 . Following the transparency principle, a notice should be published as well in cases of an incomplete procedure, when a procedure has been discontinued, declared unsuccessful, or the contract has not been awarded 453 . This notice should be published in the same way as the contract notice has been published. If the requirement for publication of the contract notices, in a standard form and of certain content, is provided by the Albanian PPL in the same way as it is provided for by the respective Directives, there is a different approach for the place where these notices should be published. According to the relevant Directives, notices for contracts and contract award notices of a certain type and value (which means that they are subject to the Directive 454 ), must be sent to the Office for the Official Publications of the European Communities 455 . Contract notices shall be published in full in an official language of the Community as chosen by the contracting authority, this original language version constituting the sole authentic text. A summary of the important elements of each notice shall be published in the other official languages. These notices are published free of charge (the costs of publication of such notices by the Commission shall be borne by the Community). The Commission shall give the contracting authority confirmation of the publication of the information sent, mentioning the date of that publication, which shall constitute proof of publication. Directive 2004/18/EC does provide for two ways of communication with the Publication Office of the EU: by electronic means and non- electronic means. The difference on the way of communication is reflected at the restriction on the length of the notices and ‘responding time” of the Publication Office. The content of notices not sent by electronic means shall be limited to approximately 650 words, while there are not such limitations for the content of the notices sent by electronic means. Also, notices drawn up and transmitted by electronic means shall be published no later than five days after they are sent, while notices which are not transmitted by electronic means, shall be published not later than 12 days after they are 452 See article 25 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 453 See article 24 of the PPL and Annex VIII, 2 b respectively of the Directive 2004/18/EC and Directive 2014/24/EU. 454 Contracting authorities from Member States award very many contracts that are not subject to the requirement to advertise according to the Directive’ requirements. This may be the case, for example, of a particular type of contract that is not subject to those obligations or that is of small value and therefore does not meet the required thresholds (such a contract is referred to as ‘sub-threshold’). As previously discussed, the Directive does not set down specific rules that apply to the award of these types of contracts, but the basic general law and Treaty principles, including the requirement for transparency and equal treatment, do apply to the procurement process that the contracting authority follows in procuring those contracts. 455 A free online version of the Supplement of the Official Journal of the European Union (OJEU) called ‘TED’ (Tenders Electronic Daily) is available at http://ted.europa.eu. TED is updated five times per week, and all notices are published in full and translated into all EU languages. TED provides free access to business opportunities for economic operators that use the TED database to search for tender opportunities by country, region, business sector or other categories. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 122 sent (when no prior information notice has been used) 456 . This difference aims at the stimulation of the electronic communication. The Directive 2014/24, on the other hand, is stricter in this regard, allowing only for electronic communication 457 . The ‘electronic’ tendency of this Directive goes further, when it requires all contracting authorities to offer free of charge unrestricted and full direct access by electronic means to the procurement documents from the date of the publication of a notice or the date on which an invitation to confirm interest was sent 458 . The text of the notice or the invitation to confirm interest shall specify the internet address, where the procurement documents are accessible 459 . Except for the ‘centralized’ publication, contract notices may also be advertised at the national level. Where additional advertisement is used, the Directive stipulates that this advertisement must not take place before the contract notice has been dispatched to the Office of the Official Publications of the European Community and that the additional advertisement must not contain any information that is not included in the contract notice. Notices and their contents may not be published at national level before the date on which they are sent to the Commission 460 . This requirement is strongly related with the principle of equal treatment and non-discrimination. It seeks to avoid situations in which economic operators of the Member State that is launching the procurement procedure will have the information before the potential economic operators of other Member States. Also, the requirement on the language of the notices comes in the light of these principles. Aiming at the uniformity that ‘supports’ the equal treatment and non- discrimination, the European Commission has introduced a detailed coding system, so called ‘Common Procurement Vocabulary’ (CPV) 461 specifically for use in public procurement. It provides a method for describing works, supplies and services using a unique reference number 462 . Economic operators can search for contract opportunities 456 See article 36 and Annex VIII of the Directive 2004/18/EC. 457 According to the article 50 of Directive 2014/24/EU, ‘notices shall be drawn up, transmitted by electronic means to the Publications Office of the European Union’. 458 The Directive 2004/18/EC does provide for both ways of access to the procurement documents, electronic and non-electronic ways. See for example article 39/1 of the Directive, according to which ‘where contracting authorities do not offer unrestricted and full direct access by electronic means to the specifications and any supporting documents, the specifications and supplementary documents shall be sent to economic operators within six days of receipt of the request to participate, provided that the request was made in good time before the deadline for the submission of tenders’. 459 See article 53/1 of the Directive 2014/24/EU. 460 See article 36/5of the Directive 2004/18/EC and article 52 of the Directive 2014/24/EU. 461 See respectively articles 1/14 and 23 of Directive 2004/18/EC and Directive 2014/24/EU. 462 A single classification system: the Common Procurement Vocabulary (CPV) has been established by Regulation (EC) No. 2195/2002. The classification endeavors to cover all requirements for supplies, works and services. Later on the CPV codes were updated in 2008 and were adopted under Regulation (EC) No. 213/2008 and have been in use since September 2008. The CPV attaches to each numerical code a description of the subject of the contract, for which there is a version in each of the official languages of the EU. The CPV codes are subject to ongoing updating. The up to date list of CPV codes and the tables of correspondence between the CPV and other nomenclatures can be consulted at www.simap.europa.eu . Impact of European Union public procurement legislation on the Albanian public procurement system 2015 123 electronically using the CPV codes. The CPV attaches to each numerical code a description of the subject of the contract, for which there is a version in each of the official languages of the EU. The CPV consists of: - A main vocabulary containing a series of numerical codes comprising eight digits each and subdivided into divisions, groups, classes and categories. A ninth digit serves to verify the previous digits; - a supplementary vocabulary expanding the description of the subject of a contract by adding further details regarding the nature or destination of the goods to be purchased. Use of these codes enables automatic and accurate translation into other Community languages. The aim is to make access to tender opportunities easier for economic operators. 3.2.3 Summary Analyzing the requirement of the respective Directives for publication of notices, such as the place they should be published, the time scale, the language, CPV codes, etc, it is clearly understood that these requirements refer to the contracting authorities of Member States only. As such, they might not be applicable to a country, which is not a Member State yet, meaning that a national law of such country cannot introduce such concrete requirement, even though it might be under an approximation process. Saying this, the Albanian PPL does not ‘comply’ with respective Directives, regarding the requirements on notice’ publications, but on the other hand it is for sure that the respective PPL requirements does comply one hundred per cent with the overall requirements of the Directives regarding transparency. According the Albanian PPL, contract notices for contracts of a value above the high value thresholds (so called international procurement procedure) 463 shall be published on the Public Notices Bulletin (PNB) 464 and on at least one journal of European distribution 465 , while contract notices for contracts of a value lower than the high value thresholds (so called national procedures), but above the low value thresholds, shall be published only in the PNB. In any case, all procurement notices (despite their value) are published on the web-site of the Public Procurement Agency (PPA) 466 . This requirement goes even further in the secondary legislation, which does require that all contracting authorities (in Albania) should use the electronic procurement system (eps) 467 (placed in the PPA website), not only to publish their procurement 463 See article 27 of the PPL “Monetary threshold”. 464 See article 3 of the Decision of Council of Ministers no. 914, date 29.12.2014 “Rules on Public Procurement”. 465 This means that the information on the procedure will be given in a well known international journal. 466 See article 38/ 2, 3 and 4 of the PPL. 467 The electronic procurement platform is a centralized web-based application, supporting the automation for public procurement procedures of all the Albanian contracting authorities. This system enables secure 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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