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- 4.1 Public procurement procedures
- 4.1.1.a Open procedure
- 4.1.1.b Restricted procedure
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2015 167 wishes to award a contract without competition, using what is known as the ‘negotiated procedure without prior publication of a contract notice’, then it can only do so if specific conditions are met 628 . All these awarding procedures and procurement tools will be discussed in details, here below 629 . 4.1 Public procurement procedures According to the Albanian PPL, in awarding their public contracts, contracting authorities shall apply one of the types of procedures to be used for the award of public procurement, which are: a) open procedures; b) restricted procedures; c) negotiated procedures, with or without prior publication of a contract notice; d) request for proposals; e) design contests; f) consultancy services 630 . The open procedure is the most preferred one by the PPL, as it states that this type of procedure can always be used for all types of contracts. Restricted procedure, on the other hand, can be used when it is necessary to distinguish between the selection phase – dealing only with the candidates’ qualifications – and the award phase – dealing with the offer. Design contests and consultancy services are procedures, which may be used only for specific types of contracts (mainly service contracts). Negotiated procedures may be used only in the specific circumstances set forth in the respective articles of the PPL. As per request for proposals’ procedure, it may be used despite the type of the contract, but only for contracts of a value 631 lower than the low value thresholds 632 . 628 As will be analyzed further in this chapter, the European Court of Justice (ECJ) has confirmed that these conditions should be narrowly interpreted and that the award of a contract without competition should only occur in exceptional circumstances. 629 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 the need for further approximation of the PPL will be analyzed among others, this analysis will be made referring to the provisions of the new Directive 2014/24/EU. 630 See article 29/1 of PPL. 631 The applicable thresholds for the purposes of the PPL are: a) high value thresholds; b) low value thresholds. The value of the thresholds might be reviewed by Council of Ministers (see article 27 of the PPL). In accordance to the PPL, the value of the thresholds is set forth, as follows: i. the high value thresholds are: a) 1.200.000.000 (one billion and two hundred millions) ALL for public works contracts (ca. 8,5 mln EUR); b) 200.000.000 (two hundred million) ALL for public service and supply contracts (ca. 1,5 mln EUR) ii. the low value thresholds are: a) 12.000.000 (twelve millions) ALL for public works contracts (ca.86,000 EUR); b) 8.000.000 (eight million) ALL for public service and supply contracts (ca. 57,000 EUR). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 168 As it is noticed, PPL does provide in a specific article for all types of procedures which may be used from a contracting authority, depending on concrete circumstances that should be considered to decide on the type of the procedure. As such, PPL formally does not make a division on competitive procedures and non-competitive procedures, but giving some general considerations 633 on when certain procedure can be used, it is understandable that either under PPL they might be divided in two sub-categories; competitive procedures and non-competitive procedures. This provision of the PPL generally comes in the same line with the relevant provision of the Directive 2004/18, which provides for procurement procedures 634 . As such, the Directive at issue also provides that contracting authorities shall award public contracts by applying the open or restricted procedure 635 . Except for these two main procedures, in the specific circumstances expressly provided for in the Directive, contracting authorities may award their public contracts by means of the competitive dialogue. Also, in the specific cases and circumstances provided by the Directive, they may apply a negotiated procedure, with or without publication of the contract notice 636 . Thus, except for (See article 8/1of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”). As compared with the thresholds currently in force in the European Union “high thresholds” in Albania are considerably higher than those set by the EU directives. It should be noted, however, that in the Albanian PPL the procedures above high and low value contracts are basically the same– the only difference is that in the case of contracts above the high thresholds some additional obligations are imposed on public purchasers (additional publication in widely accessible in the European newspaper, use of English for tender dossiers and longer time periods for receipt of requests or offers are required). There is no bottom threshold set by the PPL or implementing rules adopted on its basis, under which there would be no need to apply specific public procurement rules. None the less, in the case of very small contracts, not exceeding 800 000 ALL (ca 5.700 EUR) within one calendar year, contracting authorities are authorized to use the “small value procurement procedure”, as defined in procurement regulations. 632 See article 29/2, 3 and 4 of the PPL. 633 Further the concrete conditions provided by PPL will be analyzed for using each of the procurement procedures at issue. 634 See article 28 of the Directive 2004/18/EC. 635 According to the article 28, para.1 of Directive 2004/18/EC, ‘In awarding their public contracts, contracting authorities shall apply the national procedures adjusted for the purposes of this Directive’, meaning that in any case, it is left on the discretion of each Member State to decide on concrete procedural aspects, enough not to contradict ‘the purpose of the Directive’. 636 The number of public procurement procedures that can be used has expanded over the years, in particular, as a result of the 2004 and 2014 revisions. In addition to the traditional open, restricted and negotiated procedures, the 2004 reform formally introduced competitive dialogue. The 2014 reform has instituted a new competitive procedure with negotiation and the innovation partnership. The multiplication of procedures necessitates defining their nature as their different characteristics have an impact on which subsidiary rules are applicable or how legislative limitations should be overcome. As such, it can be argued that the procedures contained in Directive 2014/24/EU may be characterized as standard, special or exceptional depending on the freedom that contracting authorities exercise in their choice as to the relevant procedure. See P. Telles and L. R. A. Butler” Public Procurement Award Procedures in Directive 2014/24/EU”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg.132. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 169 similarities, on one hand, Directive 2004/18/EC does provide for a type of procurement procedure which is not provided by PPL 637 , and on the other hand, PPL does provide for a procedure which is not listed by the Directive 638 . Furthermore, the Directive does not list the design contest at the procurement procedures’ provision, even though, it provides for such a procedure, in specific articles. 4.1.1 Definitions and procedural aspects of competitive procurement procedures Procurement rules (both PPL and Directive) does provide for definitions of procurement procedures and for procedural aspects, which should be followed in different procedures, which will be analyzed in details here below. 4.1.1.a Open procedure Open procedure is a ‘single-stage’ competitive procedure, whereby any interested economic operator may submit a tender that can be used for works, supplies and services contracts without having to fulfill any special conditions 639 . According to the Albanian PPL, the open procedure is the preferred procurement procedure 640 . In case of using an open procedure, a contracting authority advertises the contract opportunity 641 and then issues full tender documents, including the specification and contract, to all economic operators that request to participate. According to the Albanian legislation, full tender documents are always electronically available, because the contracting authority has the obligation to publish a set of tender documents and at 637 PPL does not provide for the “competitive dialogue” procedure. 638 Among other procedures, PPL does provide also for the request for proposal procedure, which is used for values lower than low threshold, but despite this, all requirements of the PPL, are mandatory as well for this kind of procedure. 639 Both, PPL and Directive 2004/18/EC, give a definition of an ‘open procedure’, on their relevant definitions’ articles (see article 3/17 of the PPL and article 1/11 (a) of Directive 2004/18/EC). The New Directive 2014/24/EU, on the other hand, does not provide for a definition on the “definitions’ article, but provide for a specific article on open procedure, stating among others that “In open procedures, any interested economic operator may submit a tender in response to a call for competition” (see article 27). 640 The Albanian PPL, aiming at encouraging at maximum the transparence and competition in the procurement process, has emphasized that the open procedure is the most preferred one, and as such it can be used by the contracting authorities, without any need of justification, while all other procedures, including the restricted one, may be used only in justified cases (See article 30/1 of PPL and article 33 of the Decision of CoM). This legal approach is reflected at the number of open procedures, performed over the year. The statistical data show that the ‘open procedure’ is the most used procurement procedure for contracts above the low value thresholds (see annual reports of PPA available at www.app.gov.al ). 641 See articles 30/2 and 38 of PPL and respectively Annex VII A of Directive 2004/18/EC and article 27/1 of Directive 2014/24/EU. PPL and Directive 2014/24/EU have specific articles providing basic requirements for the open procedure, while Directive 2004/18/EC, does not provide for such a specific article. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 170 the same time, they publish the contract notice 642 . According to the Directive 2004/18, in case of using the open procedures, 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 receiving the request to participate, provided that the request was submitted in good time before the deadline for the submission of tenders 643 . The economic operators submit both the selection (qualification) information and the tenders at the same time in response to the contracting authority’s advertised requirements, within the time limits for the submission of the bids 644 . The contracting authority may receive a large number of tenders as it cannot control the number of tenders that it receives 645 , but only tenders from suitably qualified economic operators that have 642 See articles 39 and 41 of the PPL and article 5 of Decision of CoM. 643 See article 39 of Directive 2004/18/EC. Directive 2014/24/EU, on the other hand, provides as a rule that “Contracting authorities shall by electronic means offer unrestricted and full direct access free of charge to the procurement documents from the date of publication of a notice in accordance with Article 51 or the date on which an invitation to confirm interest was sent. The text of the notice or the invitation to confirm interest shall specify the internet address at which the procurement documents are accessible”. 644 According to the PPL, the time limits for bid submission in an open procedure depend on the threshold (if it is international or national procedure). As such, in case of open procedures above the high value thresholds, the minimum time-limit for the receipt of tenders shall be not less than 52 days from the date, when the contract notice was published on the Public Procurement Agency website. In case of open procedures between the high and the low value thresholds, the minimum time-limit for the receipt of tenders shall be 30 days from the date when the contract notice was published on the Public Procurement Agency website. In case notices are prepared and published by electronic means, (and this is always the case) in compliance with the format and procedure for the transmission that are provided in the PP-rules, the time limits for the receipt of tenders may be reduced by seven days for the open procedure (see article 43 of PPL). This PPL provision comes in the same line of relevant provision of Directive 2004/18/EC, which provides that in the case of open procedures, the minimum time limit for the receipt of tenders shall be 52 days from the date on which the contract notice was sent. (article 38) When contracting authorities have published a prior information notice, the minimum time limit for the receipt of tenders may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days. The time limit shall run from the date on which the contract notice was sent in open procedures (see article 38 of the Directive). Comparing the two relevant provisions of PPL and Directive 2004/18/EC, it is noticed that they provide both for the same time limits (referring to the contract above the high value threshold according to PPL) and in case of using PIN, the respective Directive time limits, will be even shorter that those provided by PPL. Directive 2014/24/EU, on the other hand, applies even shorter time limits, providing that ‘the minimum time limit for the receipt of tenders shall be 35 days from the date on which the contract notice was sent. Where contracting authorities have published a prior information notice, which was not itself used as a means of calling for competition, the minimum time limit for the receipt of tenders, may be shortened to 15 days, provided that all required conditions are fulfilled. Also (if the PIN’ option is not used, the contracting authority may reduce by five days the time limit for the receipt of tenders where it accepts that tenders may be submitted by electronic means in accordance with the relevant provisions (see article 27 of Directive 2014/24/EU). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 171 submitted the required documents and that meet the selection criteria are considered 646 . All the tenders will be evaluated, first to assess the qualification of the tenderers, and second to award the contract to the successful tenderer based on the award criteria. Tenders can be evaluated on the basis of either the lowest price or the most economically advantageous tender. No negotiations are permitted with economic operators, although contracting authorities may clarify aspects of the tender with tenderers 647 . Whilst the procedure seeks to provide for maximum participation, it may not always be the most appropriate procedure and in this case 648 the Directive (s) provide for the possibility of the contracting authorities, given the value of the contracts and the costs associated with evaluating a large number of tenders, to pre-qualify a smaller number of potential tenderers first, using the restricted procedure, in order to make the process more manageable and less costly for both itself and the tenderers. PPL, on the other hand, does not allow for this possibility. Instead, it does stimulate the use of the open procedure, aiming at the maximization of the competition. This approach of the PPL is argued with the ‘fear’ of the misuse of the law to narrow the competition in a procurement procedure. 4.1.1.b Restricted procedure Restricted procedures are those procedures, in which any economic operator may request to participate and whereby only those economic operators selected by the contracting authority may submit a tender 649 . According to the PPL, contracting authorities may use the restricted procedure to carry out a procurement activity, which leads to the award of a public contract, when: 646 See article 30/4 of PPL and respectively Recital no.39 of Directive 2004/18/EC and article 56 of Directive 2014/24/EU. 647 As discussed at point 3.3.2.5 at Chapter III above, the Directive(s) does allow not only for clarification, but also for the supplementing possibility. PPL, on the other hand, does allow only for the clarification option. In any case, these options are allowed given the condition that this does not involve discrimination; otherwise, non-compliant tenders must generally be rejected in respect to the principle of equal treatment or non-discrimination. See, for example, case C-234/89 Commission v Denmark (‘Danish Bridge’) [1993] ECR I-3353, case C-87/94 Commission v Kingdom of Belgium (Walloon Buses) [1996] ECR I-2043 and case T-40/01 Scan Office Design SA v Commission [2002] ECR II-5043. 648 Both Directives 2004/18/EC and 2014/24/EU leaves the choice to the contracting authority, as according to the restricted procedure, it is not linked to specific grounds. See the analysis below. 649 As in the case of the ‘open procedure’ both PPL and Directive 2004/18/EC, give a definition of the ‘restricted procedure’, on their relevant definitions’ articles (see article 3/18 of the PPL and article 1/11 (b) of Directive 2004/18/EC). The New Directive 2014/24/EU, on the other hand, does not provide for a definition on the “definitions’ article, but provide for a specific article on ‘restricted procedure’, stating among others that “In restricted procedures, any economic operator may submit a request to participate in response to a call for competition containing the information set out in Annex V parts B or C as the case may be by providing the information for qualitative selection that is requested by the contracting authority. Only those economic operators invited to do so by the contracting authority following its assessment of the information provided may submit a tender. Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with respective provision of the Directive” (see article 28). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 172 a) the respective good, service or work – having a rather complicated and special character – may be supplied, obtained or executed by economic operators who possess the proper technical, professional and financial capacities; b) it would be economically more effective for the contracting authority to examine the capacities and the qualifications of the interested economic operators first and then, to invite those operators, who possess specific minimal qualifications to submit their tenders 650 . When making the decision to apply the restricted procedure, the contracting authority should consider: a) aspects related to the nature of the contract; b) the time frame involved; c) the costs involved with running the procedure divided into two steps; d) the market situation; e) the prospective/expected number of tenderers. In no manner the value and size of the contract may be the sole reason for justifying the complexity of the contract or of the awarding process. This procedure must not be used for works, goods and services of general market availability or with standard and simple technical specification 651 . The conditions of using the restricted procedure, under the Albanian procurement legislation, do not comply with the relevant provisions of Directive 2004/18. According to this Directive, the contracting authorities should not use the restricted procedure for particularly complex projects, providing that ‘open’ and ‘restricted’ procedures do not allow the award of such contracts 652 . Furthermore, under the Directive provisions, in restricted procedures, contracting authorities may limit the number of suitable candidates they will invite to tender, provided a sufficient number of suitable candidates are available. The contracting authorities shall indicate in the contract notice the objective 650 See article 31/1 of the PPL. 651 See article 34/ 2 and 3 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 652 See Recital no.31 of the Directive 2004/18/EC, which provides that “Contracting authorities, which carry out particularly complex projects may, without this being due to any fault on their part, find it objectively impossible to define the means of satisfying their needs or of assessing what the market can offer in the way of technical solutions and/or financial/legal solutions. This situation may arise in particular with the implementation of important integrated transport infrastructure projects, large computer networks or projects involving complex and structured financing, the financial and legal make-up of which cannot be defined in advance. To the extent that use of open or restricted procedures does not allow the award of such contracts, a flexible procedure should be provided, which preserves not only competition between economic operators but also the need for the contracting authorities to discuss all aspects of the contract with each candidate. However, this procedure must not be used in such a way as to restrict or distort competition, particularly by altering any fundamental aspects of the offers, or by imposing substantial new requirements on the successful tenderer, or by involving any tenderer other than the one selected as the most economically advantageous”. 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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