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- 4.1.2 Other competitive procurement procedures under PPL
- 4.1.2.a Consultancy services 696
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2015 179 It may be that having two similar procedures for almost same situations will actually confuse procurers and lead to non-adoption as it leaves officials open to criticism should a procedure fail or the results are not as good as anticipated 676 . Saying this, and considering also the prejudice for ‘preferential treatments’ through negotiations, might be some grounds for explanation why this procedure is used in very few cases from the contracting authority in Albania 677 . 4.1.1.d Competitive dialogue procedure Directive 2004/18, except for the above competitive procedures, provides also for another procedure called ‘the competitive dialogue procedure’ 678 . ‘Competitive dialogue’ is a procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender 679 . This is also a two-stage procedure and might be used in the case of particularly complex contracts 680 , providing that use of the open or restricted procedure will not allow the award of the contract. The contracting authority advertises the contract opportunity, and the economic operators first submit pre-qualification and selection stage information, which is used by the contracting authority to establish whether the economic operators are qualified to perform the contract and to select the economic operators that are to be invited to tender. The 676 See also 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.143. 677 According to the Annual Reports of PPA, the number of restricted procedure in years 2011, 2012, 2013 and 2014 have been respectively, 3, 0, 1 and 0 (see Annual Reports of PPA, available at www.app.gov.al ). 678 See article 29 of the Directive 2004/18/EC. This type of procedure is also provided by the Directive 2014/24/EU (see article 30 of Directive 2014/24/EU). The general purpose of competitive dialogue appears to remain unchanged, namely that for certain contracts where the solution is not clear in advance, it is possible for contracting authorities to discuss with candidates any and all topics related to a contract. See further 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.144. 679 See article 1/11 (c), para. 1 of Directive 2004/18/EC. 680 According to article 1/11 (c), para.2, for the purpose of recourse to the procedure at issue, a public contract is considered to be "particularly complex" where the contracting authorities: - are not objectively able to define the technical means in accordance with the relevant article of Directive 2004/18/EC, capable of satisfying their needs or objectives, and/or - are not objectively able to specify the legal and/or financial make-up of a project. It should be noted that under Directive 2014/24/EU/EU, competitive dialogue is no longer limited to situations of particular complexity but can be used for the award of contracts on the same grounds as the competitive procedure with negotiation specified in Article 26(4). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 180 contracting authority is permitted to limit the number of economic operators being invited to tender and to draw up a shortlist of economic operators. The contracting authority issues the invitation to participate only to the economic operators that it has shortlisted, and it then enters into a competitive dialogue phase with those economic operators. During the competitive dialogue phase, all aspects of the project can be discussed with the economic operators and the number of solutions can be reduced as part of the process. Once the contracting authority is satisfied that it will receive proposals meeting its requirements, it declares the competitive dialogue phase closed and invites tenders. Under this procedure, tenders can only be evaluated on the basis of the most economically advantageous tender. This procedure was first proposed as another variation of the negotiated procedure with a call for competition and this uncertain conception may well be at the root of the current uncertainty over its scope of application 681 . That lack of clarity 682 led to an unfortunate uncertainty with regard to the scope of the procedure and to a very hesitant application of the procedure in a broad range of Member States themselves 683 . It is interesting that when providing the conditions of using such procedure, Directive addresses to Member States and not to contracting authorities, as it does in case of other competitive procedures. Considering this, it might be said that this procedure is an optional procedure that Member States can choose or not to use in their national legislations. As such, being so similar to the negotiated procedure with prior publication of a notice 684 (arguing here same as above, that having two similar procedures for almost same situations will actually confuse procurers and lead to non-adoption as it leaves officials open to criticism should a procedure fail or the results are not as good as anticipated), on one hand and considered as an optional procedure even for Member States (considering 681 P. Trepte “Public Procurement in the EU- a practitioner’s Guide, Second Edition”, published by Oxford University Press Inc., New York, 2007, pg. 404, para 7.79. 682 . The European Commission, in its Explanatory Note - Competitive Dialogue – Classic Directive (CC 2005/04) (available at: http://ec.europa.eu/internal_market/publicprocurement/docs/explan notes/classic- dir-dialogue_en.pdf ) explaining the introduction of the competitive dialogue procedures, emphasizes that the use of the negotiated procedure with prior publication of a contract notice is ‘limited solely to the cases listed’ in the Directives. This implies that the competitive dialogue process is more easily available than the negotiated procedure with prior publication of a contract notice. However, there are no legal provisions in the Directive requiring a contracting authority to use one of these procedures in preference to the other, which creates grounds for unclarity. 683 See the extensive and comparative analysis in S. Arrowsmith and S. Treumer (eds.), Competitive Dialogue in EU Procurement, Cambridge University Press, 2012. 684 According to Article 26 of Directive 2014/24/EU, contracting authorities are able to use competitive dialogue, the new competitive procedure with negotiation and innovation partnerships to award contracts as long as certain grounds for use are met. A cursory glance at the three procedures, regulated in successive articles of the Directive, creates an instant impression that all three procedures are very similar. Each has its own specificities but there is more by way of commonality than distinction between them. As such, the underlying rationale for providing two or three very similar procedures with similar grounds for use might be questioned. See further 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.143. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 181 here also the uncertainty about the scope of application of such procedure, even for Member States) on the other hand, the Albanian legislation does not provide for the competitive dialogue procedure, at all. Thus, formally the Albanian PPL might be considered not in line with Directive 2004/18, in this regard, but as the provisions on competitive dialogue are of optional character 685 and as such are left as regards their transposition to the discretion of national legislators of the Member States, this might be one of the situations, when the requirement on ‘fully approximation, should not be tightly read. 4.1.1.e Design contests According to Directive 2004/18 686 , "design contests" means those procedures, which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes. The Albanian PPL, on the other hand, does provide for a narrower definition 687 , focusing to ‘an aesthetic nature’ of a study, or design providing that ‘design contests’ are those procedures enabling the contracting authority to acquire a study or design of a merely aesthetic nature, selected by a jury after being put out to competition. However, even PPL with the latest amendments 688 has introduced the same definition of the design contests 689 , as Directive 2004/18. The basic requirements on using the design contest are the same in PPL and Directives 2004/18 and 2014/24 690 . As such PPL 691 provides that Design contest may be organized: (a) as a part of a procedure leading to the award of a public service contract; (b) for the purposes of obtaining the design only, which is rewarded with a prize or a payment. Contracting authorities wishing to launch a design contest shall make known their intention by means of a contest notice, which shall be published according to respective 685 See Article 29 of the Directive 2004/18/EC, which defines the conduct of this procedure, states that “Member States may provide...”. The directive 2014/24/EU, on the other hand, makes this procedure mandatory for implementation meaning that the Member States have no other option than to transpose it to their legal systems. As will be discussed on the following Chapter, this different approach of the New Directive will change also the position of Albanian PPL toward the approximation process. 686 See article 1/11 (2) of Directive 2004/18/EC. The same definition is provided by Directive 2014/24/EU, as well, in article 2/21. 687 See article 3/21 of PPL. 688 It refers to the amendments made to PPL by law no. 182/2014 “On some amendments of law no.9643, dated 20.11.2006 “On public procurement”, as amended. 689 See article 35/1 of PPL. 690 New Directive 2014/24/EU provide the same requirements on design contests as Directive 2004/18/EC. See articles 78-82 of Directive 2014/24/EU, formerly Articles 66-74 Directive 2004/18/EC. 691 See article 35 of PPL and article 38 of the Decision of CoM no. 914, dated 29.12.2014 “Rules on Public Procurement”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 182 provisions, as discussed in Chapter IV above. The rules governing each individual contest shall be communicated to those interested in participating in the contest. Participation in a contest may be limited to a number of selected candidates, provided that the selection is made on the basis of clear and non discriminatory criteria made known to all interested persons and that the number of candidates invited to participate is sufficient to ensure genuine competition. The admission of participants to a contest shall not be limited: (a) by reference to the nationality, territory or residence; (b) on the grounds that they would be required to be either natural or legal persons. The commission (jury) shall be composed exclusively by persons, independent of participants in the contest and conduct the contest autonomously. The majority of the commission members must have same license or specialization provided as a qualification requirement by the tender documents and with 10 years of experience in the topic of the design to procure. The commission’s decisions shall be based on the criteria set out in the contest notice and respect the principle of anonymity of participants. Except for these similarities, there are still some different approaches used on design contests, between PPL and Directive (s). According to the Directive, there are no detailed requirements relating to the number of stages to be used, while according to Albanian procurement rules, it is specified that the design contests is a two-stage procedure. The given articles of Directive (s) specify the scope of design contests and cover the issue of financial thresholds, providing some specific thresholds above which the design contests may be used 692 , while Albanian legislation does not provide for such thresholds, meaning that it does not condition the use of such procedure with financial thresholds. According to the Directive at issue, a contracting authority may choose to limit participants and where it does so, it must lay down clear and non-discriminatory selection criteria. The minimum number of participants is not specified, but there must be a sufficient number of participants to ensure genuine competition. PPL, on the other hand, as in all other competitive procedures analyzed above, does not allow for the limitation of the number of participants. There are no detailed provisions covering matters such as time limits, the contents of the documents inviting candidates to participate, or criteria for selection and evaluation, in the Directive (s) and therefore those aspects of the process are governed by the basic principles requiring the process to be conducted in a transparent manner, ensuring equal treatment and non-discrimination. The same situation has been in the PPL up to 2014; there were no more details than those provided by the Directive. Even though the legal aspects seem all right, there was a problem in the practical aspect with this procedure, because in 7 years of its legal history (this procedure has been introduced in the PPL since the end of year 2006), there was a reluctance from the contracting authorities of 692 According to article 67 of the Directive 2004/18/EC, the financial thresholds are different for different types of contracting authorities. The provisions covering the calculation of the financial thresholds specify that the total value of both prizes/payments and any potential public service contract must be taken into account. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 183 using such a procedure 693 . The main concern of the contracting authorities were the lack of detailed provisions covering matters such as time limits, the contents of the documents inviting candidates to participate, or criteria for selection and evaluation, and all procedural steps to be followed. Based on these concerns to make this procedure happen in practice, in procurement rules, detailed provisions on procedural steps and time limits even for this procedure 694 were introduced. Analyzing this situation, it seems that in Albania not only the legislator fears the discretion of the contracting authorities, but also contracting authorities fear their own discretion. The ‘flexibility’ of the rules leaves officials open to criticism and to prejudices mainly by the audit bodies, and for this reason they prefer better detailed rules, which will ‘protect’ them from any audit ‘opinion’ or ‘perceptiveness’. This situation is a very good example of the need for a national approach (which depends on national characteristics), which goes beyond a strict approximation to make a Directive’s rule applicable, especially in non-Member States. 4.1.2 Other competitive procurement procedures under PPL Except for the competitive procedures analyzed above 695 , PPL does provide as well for two other procurement procedures, which are open to the competition, but are not provided as such by the relevant EU Directive(s). Here below I will analyze the reasons of providing these procedures by PPL and grounds of using them by the contracting authorities. 4.1.2.a Consultancy services 696 According to the PPL 697 , ‘consultancy contracts’ are contracts for public consulting services of intellectual and advisory nature, to the exclusion of other types of services, where the physical aspects of the activity predominate. Contracting authorities wishing to 693 According to Annual Reports of PPA from 2007 to 2014, there is no specific statistical data for the use of design contests. After the legal changes, on this procedure, in the first trimester of the year 2015 are already launched electronically 8 design contests (see contract notices for the design contests procedures launched at www.app.gov.al/ep/ContractNotice.aspx ). 694 See article 38 of the Decision of CoM no. 914, date 29.12.2014 “Rules on Public Procurement”. 695 As discussed above, PPL provides for the same competitive procedures as the Directive, except for the competitive dialogue. 696 This procedure hasn’t been provided as a separate procedure, in the very first law on public procurement in Albania, which dates back to 1995. This procedure has been introduced for the first time in the Law no. 9643, dated 20.11.2006 “On public procurement”, which is a little bit contradicting for the fact that the law 9643/2006 aimed at and signed the first steps of approximation with the relevant acquis communautaire. In fact, this procedure has been introduced in the PPL, under the influence of the World Bank’ Procurement Rules. As such the whole provisions of this procedure, in the PPL are ‘inspired’ by the World Bank’ Consultant Guidelines. See further „Guidelines selection and employment of consultants under EBRD loans and ida credits & grants by world bank borrowers”, available at http://siteresources.worldbank.org/INTPROCUREMENT/Resources/278019- 1308067833011/Consultant_GLs_English_Final_Jan2011.pdf . 697 See article 3/3 of PPL. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 184 launch a consultancy service procedure shall make known their intention by means of a contract notice 698 , which shall be published according to respective provisions, as discussed in Chapter IV above. This means that the consultancy procedure is a competitive one, where as in all other competitive procedures provided by PPL, contracting authorities are not allowed to limit the number of economic operators wishing to submit a tender. The procurement rules 699 do provide for detailed rules covering matters such as time limits, conflict of interests, the contents of the documents inviting candidates to participate, or criteria for selection and evaluation. This is the only procedure provided by PPL, where the lowest price is not allowed to be used as award criteria. The tender evaluation in this case is made through a combination of a technical proposal and a financial proposal. It is a sort of MEAT criteria, but in case of the consultancy procedure, a specific formula is applied. According to the statistical data, published in the Annual Reports of PPA, this procedure is ranked at the third place among the competitive procedures used by contracting authorities in Albania 700 . The consultancy service procedure is used mainly for the infrastructure study designs 701 . Taking into consideration the grounds for using design contests procedure, it seems that these two procedures are similar to each-other, and as such they might confuse the procurement officials, in their work. This similarity might be one other reasonable argument, why the use of design contests is in so low levels in Albania. Download 5.49 Kb. Do'stlaringiz bilan baham: 
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