"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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- 3.4.1 Lowest price criteria
- 3.4.1.1 Limitations of using lowest price criteria
- 3.4.2 Most Economically Advantageous Tender criterion
- 3.4.2.1 Advantages of using MEAT
- 3.4.2.2 Criteria that may be taken into account to determine the MEAT
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2015 154 be disqualified for an unessential non-compliance with set requirements, only because the contracting authority does not have the discretion to decide differently) 581 . On the other hand, the requirements of the PPL on technical specifications and qualification criteria are applied for all public procurement procedures, despite the financial threeshold, while the Directive does not apply to public procurement procedures relating to contracts that are below certain financial thresholds set by the Directive itself 582 . This difference is explained by the different status and different objectives of the Directive from one side and PPL, as a national law of a non member country, on the other. 3.4 Contract award criteria The award criteria are the criteria that constitute the basis on which a contracting authority chooses the offer that best meets the set requirements (technical specifications and selection criteria) and consequently awards a contract. These criteria must be established in advance by the contracting authority and must not be prejudicial to fair competition. The procurement rules limit the criteria that a contracting authority may apply to award a public contract to either the lowest-price criterion, or the most economically advantageous tender (MEAT) criterion 583 . They also set out general rules concerning the formulation of the specific criteria that may be applied when the MEAT criterion is used, and lays down disclosure obligations concerning these criteria. In any case, when setting the criteria to be applied for the award of a contract (award criteria), a contracting authority should respect the procurement principles 584 and mainly: - Equal treatment and non-discrimination The award criteria must be non-discriminatory 585 (especially on the grounds of nationality) and not prejudicial to fair competition. 581 See analysis of the approach of means and goals in public procurement, discussed at point 1.3 of the Chapter I above. 582 Generally speaking, with regard to contracts below the EU thresholds, it is left to EU Member States to introduce their own rules, but in any case, the general principles of law, including the requirements of transparency, equal treatment and proportionality, as well as the Treaty principles of non-discrimination, free movement, freedom of establishment and freedom to provide services must also be respected in the context of selection (qualification) of economic operators in the case of contracts below the thresholds set in the Directive. 583 See article 55/1 of PPL and article 53/1 of Directive 2004/18/EC. The new Directive 2014/24/EU brings considerable change in this regard, by providing as the only option of awarding criteria the most economically advantageous tender. It also states that Member States may provide that contracting authorities may not use price only or cost only as the sole award criterion or restrict their use to certain categories of contracting authorities or certain types of contracts (see article 67). 584 According to recital 46 of the Directive 2004/18/EC and recital 90 of Directive 2014/24/EU, contracts are to be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment and that guarantee the assessment of tenders under conditions of effective competition. The obligation to respect such principles is stated also at article 55 of PPL. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 155 - Transparency The award criteria must be set in advance and duly disclosed in the contract notice 586 . The purpose of establishing and formally disclosing the award criteria to be applied is to ensure that: - potential tenderers can prepare their tenders in a more appropriate way, trying to best meet the stated priorities of the contracting authority; - the evaluation of tenders is carried out by a contracting authority in a transparent and reliable way and as objectively as possible; - the relevant stakeholders (for example, audit bodies, review bodies, other government bodies or economic operators) can monitor the process so as to prevent discriminatory or non-authorized award criteria 587 . 3.4.1 Lowest price criteria According to the Albanian procurement legislation, the lowest price criteria 588 may be used when works, supplies or services, object of the contract have simple and well defined specifications, or well-known technical standards 589 , while Directive 2004/18 585 See for example case C-234/03 Contse SA, Vivisol Srl, Oxigen Salud SA v Insituto Nacional de Gestion Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud) (2005) ECR I-9315. 586 Except for the explicit disclosure obligations mentioned above, the Directive does not specifically require a contracting authority to formulate a detailed evaluation methodology in advance. According to the PPL, on the other hand, in case of using MEAT, the contracting authority must disclose in the tender documents the specific weight and its concrete score, for each criterion and also the evaluation methodology. The tender documents should bring as much transparency as possible by providing clear information on how the evaluation process will take place and on all factors that will be taken into account (including their specific weightings) and the methodologies that will be applied to determine the most economically advantageous tender. This will not only help potential tenderers in preparing more responsive tenders, but it will also make the whole tender process, including the evaluation process, more transparent. Being such sepcific, the Albanian procurement legislation aims at better monitoring and controling the activity of the contracting authorities, while procuring public funds. 587 This requirement is confirmed by ECJ as well, that in the case C-538/13 “eViglio” has stated, inter alia, that the award criteria must be stated in the contract notice or the tender specifications and the fact that they are incomprehensible or lack of clarity may constitute an infringement of the Public Sector Directive. ECJ confirm as well that award criteria must be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret them in the same way. See further case C-538/13 “eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos”, Judgment ECLI:EU:C:2015:166. 588 The lowest price criteria is the criteria, which is used in more than 90 percent of procurement procedure in Albania. For this reason in the amendmends of the PPL in 2012 (law 131/2012), aiming at the decreasing of cases when this criterion is used, was stated that the lowest price criteria should have not been used always, but they may be used when works, supplies or services, object of the contract have simple and well defined specifications, or well-known technical standards. 589 See article 31/1 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 156 remains silent on this issue 590 . As such, this silence of the Directive leaves the choice between the lowest-price criterion and the MEAT criterion to the discretion of the contracting authority. 591 In any case, the choice of contracting authorities should be made considering the concrete contract to be awarded (its nature and the specific characteristics) and advantages (and disadvantages) of both criteria provided by the Directive. In this case the contracting authorities will rely only in the lowest price offered to award the contract, and do not set any other qualitative criteria. Tenders received are evaluated against the set specifications on the basis of a pass or fail system, and no quality considerations can come into play in this choice. For sure, the lowest price criteria will be considered only for the tenderers, who have passed the selection phase, meeting all requirement of the contracting authority in this regard. When the lowest price criterion applies, a contracting authority should use detailed specifications, allowing tenders that are technically compliant to be easily compared on the basis of the price only. On the other hand, the lowest-price criterion cannot be used whenever a contracting authority wants to apply cost analysis 592 . 3.4.1.1 Limitations of using lowest price criteria The lowest price criterion has the advantage of simplicity and rapidity, but it presents some limitations, including in particular the following: - It does not allow the contracting authority to take into account qualitative considerations. Apart from the quality requirements built into the specifications, which must be met by all tenders, the quality of the items being procured is not subject to evaluation 593 . - It does not allow the contracting authority to take into account innovation and innovative solutions. Tenders that meet the minimal set specifications are compliant. 590 In article 53 of Directive 2004/18/EC, the lowest price is listed as one of the award criteria, without any extra description when this criteria is more apropriate to be used. 591 This is confirmed by the European Court of Justice (ECJ) in the case C-247/02, Sintesi SpA vs. Autorita’ per la Vigilanza sui Lavori Pubblici [2004] E.C.R. I-9215, where the Court held, inter alia, that national legislation could not impose such a general and abstract requirement (refering to the impose of the Italian law that the award of all works contracts launched under an open or restricted procedure to be made on the basis of the lowest price only) since it deprived contracting authorities of the possibility of taking into consideration the nature and the specific characteristics of such contracts and of the possibility of choosing the best tender. 592 See for example case C-19/00 SIAC Construction Ltd v County Council of the County of Mayo [2001] ECR I-7725. 593 Meaning that a tender that exceeds the set specifications (and offers a better quality) but is set at a slightly higher price than a tender that simply meets (but does not exceed) the set specifications, cannot be chosen as the winning tender. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 157 - For requirements that have a long operating life, it does not allow the contracting authority to take into account the life-cycle costs (i.e. costs over the duration of the life cycle) of the requirement procured. When the lowest-price criterion is used, only the direct cost of the purchase (or the initial purchase price) within the set specifications can be taken into consideration. 3.4.2 Most Economically Advantageous Tender criterion When the most economically advantageous tender (MEAT) criterion is used, a contracting authority can take into account other criteria in addition to – or rather than – the price, such as the quality, delivery time, and after-sales services. Each chosen criterion is given a relative weighting by the contracting authority, which reflects the relative importance that it has 594 . Through the weighting system, the contracting authority makes potential tenderers know the relative importance that it attaches to each criterion chosen and it allows them to prepare more appropriate tenders. At the same time, through the weighting system, the contracting authority structures its discretion and restricts the possibilities for arbitrary decisions during the process of evaluation of tenders 595 . According to the Albanian legislation, there is a given formula used to calculate the MEAT, depending on the weight given to each criterion. Lowest price should be always one of the criteria, and, accepting its important role, it is determined that despite the nature of the contract or other characteristic of it, the lowest price criteria cannot get less than 50 points, out of 100 points 596 . For each established criterion, the contracting authority should determine the specific weight and its concrete score. Providing for such a specific rule on MEAT application, PPL does not provide neither for the possibility of expressing those weightings by providing for a range with an appropriate maximum spread, nor for the possibility of indicating in the contract notice or contract documents or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance 597 , where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, as Directives do 598 . 3.4.2.1 Advantages of using MEAT 594 See article 53/2 of Directive 2004/18/EC and article 67/5 of Directive 2014/24/EU. 595 See case C-368/10 European Commission v Kingdom of the Netherlands (Judgment of the Court (Third Chamber) 10 May 2012). 596 See article article 31/1 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 597 This system, in fact, does not allow tenderers to know in advance the relative importance that the contracting authority attaches to each criterion applied. As a result, this system makes it more difficult for potential tenderers to prepare appropriate tenders, while at the same time making it easier for a contracting authority to conceal arbitrary or discriminatory decisions during the process of evaluation of tenders. This explain also the ‘fear’ of the Albanian legislation, to give too much discretion to the contracting authority. 598 See article 53/2 of Directive 2004/18/EC and article 67/5 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 158 The MEAT criterion, as opposed to the lowest-price criterion, presents a series of advantages, including in particular the following: - It allows contracting authorities to take into account qualitative considerations. The MEAT criterion is typically used when quality is important for the contracting authority, - It allows contracting authorities to take into account innovation or innovative solutions. This is particularly important for small and medium-sized enterprises (SMEs), which are a source of innovation and important research and development activities, - For those requirements with a long operating life, it allows the contracting authority to take into account the life cycle costs (i.e. costs over the life cycle) of the requirement purchased and not only the direct cost of the purchase (or initial purchase price) within the set specifications. Considering these advantages, we might say that the MEAT criterion is typically used for complex supplies, services and works contracts, where there are various products/solutions available and where it would therefore not be appropriate to evaluate the tenders on the basis of the price only 599 . As such it might be argued that the purpose of the MEAT criterion is to identify the tender that offers best value-for-money 600 3.4.2.2 Criteria that may be taken into account to determine the MEAT A contracting authority may take into account various criteria to determine the most economically advantageous tender 601 . These criteria might be: - quality - price - technical merit 599 According to Recital 46, para.3, where the contracting authorities choose to award a contract to the most economically advantageous tender, they shall assess the tenders in order to determine, which one offers the best value for money. In order to do this, they shall determine the economic and quality criteria which, taken as a whole, must make it possible to determine the most economically advantageous tender for the contracting authority. The determination of these criteria depends on the object of the contract since they must allow the level of performance offered by each tender to be assessed in the light of the object of the contract, as defined in the technical specifications, and the value for money of each tender to be measured. 600 As discussed in Chapter II above, the concept of value-for-money recognises that goods, works and services are not homogenous, i.e. that they differ in quality, durability, longevity, availability and other terms of sale. The point of seeking value-for-money is that the contracting authorities should aim at purchasing the optimum combination of features that satisfy their needs. Therefore, the different qualities, intrinsic costs, longevity, durability, etc. of the various products on offer are measured against their cost. It may be preferable to pay more for a product that has low maintenance costs than a cheaper product that has a higher maintenance cost. 601 See article 55/1 of the PPL and respectively articles 53/1 of Directive 2004/18/EC and articles 67/2 and 68 of Directive 2014/24/EU. The latest has provided for an specific article on life-cycle costing (see article 68). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 159 - aesthetic and functional characteristics - environmental characteristics - running cost - cost-effectiveness - after-sales service and technical assistance - delivery date and delivery period or period of completion. However, the above list is only illustrative and it is left to the contracting authority to establish the criteria to be applied 602 in order to determine the most economically advantageous tender from its point of view, taking into account the specific circumstances of each case and within certain specified limitations. In any case, the criteria chosen must be linked to the subject matter of the public contract in question 603 . At the same time, the criteria chosen not only should be linked to the subject matter, but they must be aimed only at identifying the most economically advantageous tender, not to other purposes 604 . Thus, in order to guarantee the objectivity of the criteria to be applied and to prevent the unrestricted freedom of choice being conferred on the contracting authority, these criteria must be formulated in a precise and (as far as possible) measurable way, i.e. in a way that allows tenderers to plan their tenders and to take account of the way, in which the assessment/evaluation of the tenders would be made 605 . Furthermore, the criteria that a contracting authority may apply to determine the MEAT must be chosen in such a way that they match the contract specifications. All 602 Article 53/1 of Directive 2004/18/EC provides that ‘when the award is made to the tender most economically advantageous from the point of view of the contracting authority…’. See also article 67/2 of Directive 2014/24/EU. PPL, on the other hand, does not use the same wording, but in context, it leaves this on the discretion of the contracting authorities as well. 603 The requirement that the criteria must be linked to the subject matter of the public procurement in question prevents the contracting authority from choosing criteria not linked to the subject matter of the contract. Thus, for example, a contracting authority cannot give extra points to a tender simply because the tenderer that has submitted it applies in general a good environmental policy in carrying out its activities. This provision has been confirmed by the European Court of Justice in the Wienstrom case, where it has found that the award criterion applied did not relate to the service that was the subject matter of the contract. See case C-448-01, EVN AG and Wienstrom GmbH vs. Austria [2003] E.C.R. I – 14527. 604 This has been repeatedly stressed by the European Court of Justice in its case law. See for example case C-31/87, “Beentjes” (see n.53 above); case C-19/00 SIAC Construction Ltd v County Council of the County of Mayo [2001] ECR I-7725; and case C-448-01, EVN AG and Wienstrom GmbH vs. Austria [2003] E.C.R. I – 14527. In all of this cases, the Court held, inter alia, that even though it was left to the authorities awarding contracts to choose the criteria on which they proposed to base their award of the contract, their choice was limited to criteria aimed at identifying the offer that was economically the most advantageous. 605 See for example case C-315/01, Gesellschaft fur Abfallentsorgungs-Technik (GAT) v Osterreichische Autobahnen und Schnellstrassen AG [2003] E.C.R. I-6351, where the Court held, inter alia, that a simple list of references, containing only the names and the number of the tenderers’ previous customers without other details relating to the deliveries effected to those customers, could not be used as a criterion for awarding the contract since it could not provide any information that would allow the identification of the most economically advantageous tender. 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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