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- 3.3 Technical specifications and the qualification criterion
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2015 124 notices, but also to perform their procurement procedures, making the use of the electronic procurement system mandatory 468 . In this case, the contract notice and tender documents accompanying it should be dispatched in the electronic platform by the contracting authority itself. The publication of such notice and relevant tender documents will be done by PPA in the following day, of the dispatching day (by the contracting authority) 469 . The usage of this system is free of charge for both parties; the contracting authorities and the economic operators. As it is seen, the interaction between the contracting authority and the publisher (PPA in this case) is done in a very short time (only a working day). Also, using the e-procurement system does allow for a shorter time period of publication of the tender documents, compared to the paper based procedures 470 . Using such an electronic system, the Albanian procurement system, (even though it does not publish the procurement notices in the Official Journal of EU), is quite an open system towards the international business community. The e-procurement system does allow for any interested economic operators, despite their nationality, to be registered in the electronic procurement system. Registration can be done on-line or by a request sent to the Public Procurement Agency. Once an economic operator is registered, registration is valid for bidding in all public procurement procedures delivered in Albania, at any time 471 . It is important to emphasize that the requirement to use the e- procurement system does refer to all kinds of procedures (except for the negotiated without prior publication procedure), despite their value 472 . The requirement of the Albanian legislation in this regard goes further than the one of the relevant Directives, which oblige the contracting authorities to advertise only contracts of a certain value and type that are subject to the Directive. For public contracts that are not subject to an obligation to publish a notice, contracting authorities may choose to publish prior transactions among Albanian public institutions and national and international business community. See R. Kashta “E-Procurement system in Albania, impact and lessons learned”, available at http://www.ippa.org/IPPC5/Proceedings/Part2/PAPER2-5.pdf . 468 The mandatory use of the electronic procurement system has been set by the Decision of Council of Ministers no.45, dated 21.01.2009 “On performing public procurement procedures by electronic means”. This decision has been adopted several times and is now replaced by the Decision of the Council of Ministers no. 918, dated 29.12.2014 “On performing public procurement procedures by electronic means”. 469 See article 5 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 470 See article 43/8 of the PPL. 471 According to PPA in 2010, 336 new economic operators were registered in the eps, of which 114 foreign economic operators, in 2011, 347 new suppliers, of which 119 foreign suppliers, in 2012, 371 new suppliers, of which 82 foreign suppliers, in 2013, 1576 new suppliers, of which 38 foreign suppliers, in 2014, 1580 new suppliers, of which 173 foreign suppliers, (See respectively, Annual Reports of the Public Procurement Agency of Albania, available at www.app.gov.al ). 472 According to the Decision of Council of Ministers no. 918, dated 29.12.2014 “On performing public procurement procedures by electronic means”, even the small value procurement (from approximately 700 euros), must be performed through the e-procurement system. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 125 information notices, contract notices and contract award notices in the Official Journal 473 . Despite this option, when such a contract is advertised in accordance with the provisions of the Directive, however, that does not mean that the remaining provisions of the Directive apply 474 . As far as they are not covered by the relevant Directives, in practice, EU Member States may opt to introduce their own rules for sub-threshold contracts and other contracts that are not subject to the detailed advertising requirements of the Directive and as discussed above this is not the case of the Albanian procurement system. The latter is stricter as it provides for the same advertisement rules for all kinds of public contracts falling under the scope of PPL. This stricter requirement might raise a discussion on evaluating means and goals to be achieved. It might happen in practice that stricter requirement (as the obligation to publish a contract notice even for very low value contracts) might result to be a non cost-effective solution (by allowing everyone to submit an offer, the number of bids will be considerably high 475 , which means that first you will need time to evaluate, second a lot of complaints can take place, etc). Despite this, taking into consideration the ‘need for transparency” in the system 476 , the procurement legislation does ‘insist’ on the advertising requirement. Having analyzed all of the above, the answer to the question if the Albanian procurement legislation is fully approximated to the relevant EU Directive, regarding the publication of the notices, is that it is approximated at the highest level possible, considering the fact that it is a national law of a non-Member State. 3.3 Technical specifications and the qualification criterion As it is discussed in Chapter II, procurement involves the purchase of items from the market, but the process of purchasing involves many stages from initial recognition of the need for items to the final stage of ensuring completion (satisfactory delivery or construction). This initial work of ‘identification of the needs’ and the final objective of 473 See respectively article 37 of the Directive 2004/18/EC and article 51/6 of the Directive 2014/24/EU. There are also, however, some judgments of the ECJ concerning the obligation of transparency in case of contracts, which are not covered by the directives on public procurement. In the case C – 324/98 Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG, ECR 2000 Page I-10745, for example, ECJ held also that ‘…even though such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular. That principle implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with. That obligation of transparency, which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.’ 474 See for example case 45/87 Commission of the European Communities v Republic of Ireland [1988] ECR 4929. 475 According to the Annual Report of PPA during the year 2014 in the EPS 46.537 small value procurement procedures are performed (from around 70 euro to around 3500 euro). If we consider at least three bids per procedure (normally it is more than 3), the number of offers to be evaluated in a year for this kind of procedure will be no less than 120.000. 476 See discussion at point 3.1.2.d here above. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 126 ensuring ‘satisfactory completion of the contract’, are directly reflected on the technical specifications and qualification criteria. During the preparatory phase of a procurement procedure, a contracting authority should describe the characteristics of goods, services or works they want to purchase/realize through the implementation of the public contract. This description is done by the technical and service specifications. The purpose of technical and service specifications is to give instructions and guidance to tenderers at the tendering stage about the nature of the tender they will need to submit, and to serve as the economic operator’s mandate during contract implementation. On the other hand, after describing the characteristics of the object of the public contract, the contracting authorities will need to describe the criterion of the potential economic operators, which will be considered eligible to implement such a contract. This description is done by the qualification criteria of the economic operators. The qualification of economic operations refers to the process of assessing and deciding which economic operators are qualified to perform the contract (referred to also as the qualification stage). These two main components of the procurement procedure will be analyzed in details, below, in the light of relevant Directives and Albanian PPL, considering also the different environment /context of their application. 3.3.1 Technical specifications Technical specifications setting forth the characteristics of the goods, works or services to be procured 477 shall be prepared for the purpose of giving a correct and complete description of the object of procurement and for the purpose of creating conditions of fair and open competition between all candidates and tenderers 478 . Specifying a requirement 477 Differently from the Directive 2004/18/EC and the Albanian PPL, the Directive 2014/24/EU, while providing for technical specifications, goes further with its prescription providing also that ‘the characteristics required of a work, service or supply, may also refer to the specific process or method of production or provision of the requested works, supplies or services or to a specific process for another stage of its life cycle even where such factors do not form part of their material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives. The technical specifications may also specify whether the transfer of the intellectual property rights will be required’. See article 42/1. 478 See article 23/1 of the PPL. Also according to the first paragraph of the Recital no.29, of the Directive 2004/18/EC, ‘the technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To this end, it must be possible to submit tenders, which reflect the diversity of technical solutions’. On the other hand, the Directive 2014/24/EU seeks to emphasize not only the aim of allowing competition, but also achieving the objectives of sustainability. In concrete Recital no.74 of the said Directive, in its first paragraph provides that ‘the technical specifications drawn up by public purchasers need to allow public procurement to be open to competition as well as to achieve the objectives of sustainability. To that end, it should be possible to submit tenders that reflect the diversity of technical solutions standards and technical specifications in the marketplace, including those drawn up on the basis of performance criteria linked to the life cycle and the sustainability of the production process of the works, supplies and services. Consequently, technical specifications should be drafted in such a way as to avoid artificially narrowing down competition through requirements that favor a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that Impact of European Union public procurement legislation on the Albanian public procurement system 2015 127 is a fundamental and early stage in the procurement process. If the specification is lacking in some way, what is delivered will also be lacking. As such, technical specifications should reflect correctly the needs of the contracting authority and the budget estimations made for the acquisition. A set of precise and clear specifications is a prerequisite for tenderers to respond realistically and competitively to the requirements of the contracting authority. Incorrect or unrealistic specifications lead to problems that later occur during the tender and award process, such as the need for issuing amendments to the tender dossier, cancellation of tender proceedings, lodging of complaints and contract problems. As such thorough preparation of technical specifications is extremely important for the ultimate success of the contract implementation; therefore, greater effort during the preparation phase will save time and money in the later stages of the project cycle. Whenever possible, the technical specifications should be defined to take into account the accessibility criteria for people with disabilities or design for all users 479 . In any case, the technical specifications shall afford equal access to candidates and tenderers, and not have the effect of creating unjustified obstacles to competitive tendering 480 . The thrust of the rules in this context is to ensure the use of non-discriminatory specifications, which would allow all potential contractors, suppliers and service-providers to meet the requirements and would prevent the artificial restriction of potentially successful tenderers to one 481 . Even in cases where a contracting authority makes a reference to a technical specification, it cannot reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in his tender to the satisfaction of the contracting authority, by whatever appropriate means 482 , that the solutions which he proposes satisfy in an equivalent manner the requirements defined by the technical specifications. Also, where a contracting authority prescribes technical specifications in terms of performance or functional requirements, it may not reject a tender for works, products or services, which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a economic operator’. While Recital no.74 provides that, when drawing up technical specifications, the contracting authorities should take into account EU law requirements in the field of data protection law, in particular in relation to the design of the processing of personal data. See also F. Lichère and S. Richetto “Framework agreements, dynamic purchasing systems and public eprocurement”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg. 206. 479 See article 23/1 of the PPL and respectively articles 23/1 and 42/1 of Directives 2004/18/EC and 2014/24/EU. 480 See article 23/2 of the PPL and respectively articles 23/2 and 42/2 of Directives 2004/18/EC and 2014/24/EU. 481 See P. Trepte “Public Procurement in the EU - a practitioner’s Guide, Second Edition”, published by Oxford University Press Inc., New York, 2007, pg. 272, para 5.03. 482 An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognized body. See article 23/4 of Directive 2004/18/EC. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 128 technical reference system established by a European standardization body, if these specifications address the performance or functional requirements, which it has laid down 483 . In this respect, they do not more than confirm the application of the Treaty principle of free movement 484 and other relevant principles deriving from it as are equal treatments, non-discrimination and mutual recognition, to the use of technical specifications. Under this light, the contracting authorities must presume that products manufactured in accordance with the standards drawn up by the competent standards bodies conform to the essential requirements laid down in the Directive concerned. They may not refuse products simply because they were not manufactured in accordance with such standards, if evidence is supplied that those products are in conformity to the essential requirements established by the Community legislative harmonization. If there are no common technical rules or standards, a contracting authority cannot reject products from other Member States on the sole grounds that they comply with different technical rules or standards, without first checking whether they meet the requirements of the contract. In accordance with the mutual recognition principle, a contracting authority must consider on equal terms products from other Member States manufactured in accordance with technical rules or standards that afford the same degree of performance and protection of the legitimate interests concerned as products manufactured in conformity with the technical specifications stipulated in the contract documents 485 . The importance of technical specification is, among others, at the fact that they are the core conditions of the contract that will be concluded at the end of the procurement process. As such they may be considered as the connection mechanism among three stages of the procurement process; identification of needs (there is no needs’ identification without specification of what is needed), competition process (based on these technical specifications the competition is run) and contract implementation (the satisfactory implementation of the contract should meet these technical specifications). Having such a role in the procurement process, the technical specifications should be included in the tender documents and will become an annex of the eventual contract awarded as a result of the tender 486 . 3.3.1.1 References of technical specifications According to the Albanian PPL 487 , technical specifications shall clearly describe the contracting authority’ requirements by reference to: 483 See article 23/3/c of the PPL and respectively articles 23/4 and 5 and 42/5 and 6 of Directives 2004/18/EC and 2014/24/EU. 484 As discussed at point 3.1.1.b, above. 485 See case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) [1979] ECR 649. 486 See articles 23 and 60/1 of the PPL and respectively articles 23 and 42 of Directives 2004/18/EC and 2014/24/EU. 487 See article 23/3 of the PPL. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 129 a) national standards transposing international accepted standards, international accepted technical approvals, common technical specifications, international standards, other technical reference systems established by international standardization bodies or - when these do not exist - to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products; b) Functional requirements with reference to national or international standards as means of presuming conformity with such functional requirements; c) Both methods under (a) and (b), for different products, services or works included in the same contract. Each reference shall be accompanied by the words "or equivalent". Relevant Directives 488 , on the other hand, provide that without prejudice to mandatory national technical rules, to the extent that they are compatible with Community law, the technical specifications shall be formulated: a) either by reference to technical specifications defined in the relevant Annex of the Directive and, in order of preference, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardization bodies or - when these do not exist - to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products. Each reference shall be accompanied by the words "or equivalent" 489 ; b) or in terms of performance or functional requirements; the latter may include environmental characteristics. However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract; c) or in terms of performance or functional requirements as mentioned in subparagraph (b), with reference to the specifications mentioned in subparagraph (a) as a means of presuming conformity with such performance or functional requirements; d) or by referring to the specifications mentioned in subparagraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in subparagraph (b) for other characteristics. Comparing the respective provisions of the Albanian PPL and the relevant Directive, on the way of formulating the technical specifications, it is clearly noticed that, PPL has 488 Both Directive 2004/18/EC and Directive 2014/24/EU does provide for the same way of formulating technical specifications. See respectively articles 23/3 and 42/3. 489 See cases C-45/87 Commission v Ireland and C-359/93 Commission v Netherland. 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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