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- 2015 204 CHAPTER V THE APPROXIMATION OF THE ALBANIAN PROCUREMENT LEGISLATION WITH THE CORRESPONDING EU LEGISLATION; THE
- 5.1 The approximation level of both legislations
- 5.1.1 Albanian PPL provisions compared to the corresponding Directive(s) provisions
- 5.1.2 EU Directive provisions which need to be transposed into the Albanian PPL
- Sub-central contracting authorities 787
- Definition of public works contracts
- Social services and other specific services 798
4.3 Summary As indicated in the introduction of this chapter, procurement procedures are the life and soul of public procurement regulations. Contracting authorities should make use of all possible means at their disposal under national law, in order to choose the most appropriate procedure which on the other hand will help them to achieve the objectives of the procurement process. Generally speaking, the procurement procedures and procurement tools, as provided by the Albanian PPL, are in compliance with the relevant provisions of the Directive 2004/18. Under both acts at issue all types of procedures are provided, which in broad terms may be categorized as standard procedures, special procedures and exceptional procedures 770 . Procedures may be characterized as standard when the contracting authority can use them in any circumstances and for any type of contract covered by the Directive. By contrast, procedures have a special nature when they can be chosen only according to specific grounds for use. Finally, procedures are deemed exceptional when 767 See article 3/11 of PPL. 768 See article 37 of PPL. 769 The need of the PPL to approximate the relevant provision of Directive 2014/24/EU will be analyzed further in the next Chapter. 770 See also R. Caranta, ‘The changes to the public contract directives and the story they tell about how EU law works’, Common Market Law, Review Contents Vol. 52 No. 2 April 2015, © 2015 Kluwer Law International. Printed in the United Kingdom. pg. 452. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 203 they function as a final alternative enabling a contract award when all else fails 771 . However, in some cases, as discussed above, PPL provisions are adapted to the national context. This ‘adaption’ aims mainly at providing stricter rules, than those provided by the relevant Directives. This is also noted, in the fact that all procedural requirements set by PPL are equally applicable for all procurement contracts, despite their estimated value 772 . While, the Directives do not set out specific rules that apply to the award of the procurement contracts under the thresholds, but the basic general law and Treaty principles, including the requirements for transparency, non-discrimination and equal treatment, do apply to the procurement process followed by the contracting authority in procuring those contracts 773 . This stricter approach of the PPL is justified with the ‘fear’ of the misuse of the law to narrow the competition in a procurement procedure 774 . Also, some of the procurement procedures and procurement tools (such as competitive dialogue, dynamic purchasing system and electronic auctions) are not provided by PPL at all. Thus, formally, the Albanian PPL may be considered in this regard not fully in line with Directive 2004/18/EC, but as the relevant provisions are of facultative character, (and as such, their transposition is left to the discretion of national legislators of Member States), this may be one of the situations when the requirement on ‘fully approximation’ should not be strictly read. However, it should be noted that referring to the provisions of the new Directive 2014/24/EU on procurement procedures 775 and tools, PPL will need to make considerable amendments to comply with this Directive 776 . 771 This proposed taxonomy of procedures implies that only the open and restricted procedures are to be classified as standard. The competitive dialogue, the competitive procedure with negotiation and the innovation partnership require specific grounds for use and, as such, are deemed special procedures. Finally, the negotiated procedure without prior notice remains a procedure of final resort if none of the other procedures are suitable. The latter cannot be identified as a regulated procedure as such, rather constituting an authorization to contracting authorities to devise a method of awarding a contract according to circumstances prescribed by the Directive. See further Pedro Telles and Luke R. A. Butler” Public Procurement Award Procedures in Directive 2014/24/EU/EU”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernising Public Procurement. The New Directive”; 1. Edition. © 2014 by Djøf Publishing Jurist- og Økonomforbundets Forlag, pg.132-133. 772 Referring to the request for proposal procedure, as discussed above. 773 EU Member States may opt to introduce their own rules for sub-threshold contracts and other contracts that are not subject to the detailed procurement requirements of the Directive. Individual contracting authorities may also be permitted or required to publish and follow their own internal purchasing rules. 774 Procurement officials authorized to make single-source decisions have great power over which companies receive the most lucrative contracts. Without evaluative guidance and oversight, individual preference can easily become part of their decision. See further “Bribery in Public Procurement-Methods, Actors and Counter-Measures”, OECD Publishing, France-Paris 2007, pg.19-25. 775 ‘With regard to procurement procedures, in Directive 2014/24/EU there have been limited changes to the open and restricted procedures, mostly due to an honest desire to reduce the transaction costs and timescales involved. The biggest change introduced to these procedures was the possibility of running the open procedure as a single stage variant, which should allow for much shorter procedures. Taking into consideration the long history and tradition of these procedures, these changes appear to constitute reasonable modifications in accord with their intended function and do not purport to radically alter their purpose. However, an important qualification concerns the short timescales under which the restricted Impact of European Union public procurement legislation on the Albanian public procurement system 2015 204 CHAPTER V THE APPROXIMATION OF THE ALBANIAN PROCUREMENT LEGISLATION WITH THE CORRESPONDING EU LEGISLATION; THE RIGHT APPROACH OF THE CONCEPT. 5.Introduction Public procurement still remains a relatively new concept in Albania nowadays. Using public procurement process to purchase goods, services, or works for the Albanian Government Bodies was possible only after 1990, when the first steps to a free and open market were taken. Given the commitments taken with the purpose of the entry into the European Union, Albania has begun the process of integration, in order to achieve the standards of the European Union. The integration process on public procurement field means the approximation of public procurement law and through it, the entire public procurement system, with the respective EU Directives. The key issue, discussed by this Chapter is, if it is possible to realize a hundred percent approximation while Albania is not yet an EU member, taking into consideration that the purpose of the Procurement Directives is to create an internal market for public contracts among Member States themselves. 5.1 The approximation level of both legislations The first steps towards the approximation of the public procurement law with Directive 2004/18/EC of the EU were marked in 2006, when a new law on public procurement has been adopted 777 . However, the approximation of PPL with the acquis at this stage was partial. Considering the commitments in the SAA 778 and following the National Plan for the Implementation of SAA 779 , public procurement law has been amended several times from 2006 to 2014 780 . Periodical Progress Reports of EC from 2006 to 2009 have procedure can now be used in circumstances of urgency…Of greater interest are the two new procedures included in the Directive: the competitive procedure with negotiation and innovation partnership…’. Ibid, pg 181. 776 The concrete needs of the PPL to approximate the relevant provision of Directive 2014/24/EU, regarding the award procedures and procurement tools, will be analyzed in the following chapter. 777 According to the Albania 2007 Progress Report of EC “…Albania has taken steps towards bringing its legislation into line with the acquis by approving a new public procurement law. Implementing legislation is in force. The new public procurement law takes into account the principles of non-discrimination and equal treatment, transparency, value for money and legal protection of bidders' interests…” 778 See point 2.4.1 of Chapter II above. 779 The National Plan for the Implementation of the Stabilization and Association Agreement (NPISAA) is a fundamental document for all public institutions for prioritizing, planning, coordination and monitoring their implementing activities under SAA. 780 See point 2.4.2 of the Chapter II above. For details see the consolidated version of the PPL available at www.app.gov.al , retrieved December 20, 2014. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 205 underlined the gradual improvement done in public procurement area, especially toward the approximation of the legislation with the acquis 781 . Meanwhile in the Analytical Report of EC 2010 782 , it is clearly expressed that the Albanian legislation is broadly aligned with the general principles applied to public procurement on the internal market. The legislative and institutional framework provides a good basis for development of an effective public procurement system in line with EU rules and so far Albania has fulfilled its SAA commitments in this area. However, according to this Analytical Report, not all the provisions of the public procurement directives were yet transposed by that time. Even though the Analytical Report of 2010 was very positive regarding the public procurement area, the two following Progress Reports of 2011 and 2012 783 stated that the legislative framework on public procurement is not fully in line with acquis. On the other hand, in the National Plan for European Integration 784 covering the period 2015-2020, for the mid-term priorities, which according to that document correspond to the time period 2016-2017, further amendments of public procurement law toward approximation with the new Directive 2014/24 785 were foreseen as a task in the area of public procurement. 5.1.1 Albanian PPL provisions compared to the corresponding Directive(s) provisions As analyzed in the previous chapters, it results that in light of the approximation process, there are three categories of EU Public Procurement Directive provisions 786 : i) EU Procurement Directive provisions not implemented to Albanian PPL. As such provisions, we might mention for example provisions providing for the Common Procurement Vocabulary (CPV), the ‘competitive dialogue’ procedure, subsidized contracts, reserved contracts, obligations related to publication of procurement notices in the Official Journal of EU, etc. ii) EU Procurement Directive provisions partially implemented (Albanian provisions not fully compliant with EU law). As such provisions, we might mention for example provisions providing for the definition of the public work contracts, the conditions for application of the restricted procedure, the participation of consortia, etc. 781 See the Progress Reports of EC 2006-2009. Available at www.mie.gov.al , retrieved December 20, 2014. 782 See the Analytical Report of EC 2010. Available at www.mie.gov.al , retrieved December 20, 2014. 783 See the Progress Reports of EC 2011-2012. Available at www.mie.gov.al , retrieved December 20, 2014. 784 The National Plan for European Integration substituted the National Plan for the Implementation of the Stabilization and Association Agreement. 785 See Chapter 5 “Public Procurement”, in the National Plan for European Integration 2015-2012, pg 156- 163. Available at http://www.integrimi.gov.al/al/dokumenta/dokumente-strategjike/plani-kombetar-per- integrimin-evropian&page=1 , retrieved December 20, 2014. 786 This comparison is made referring to both Directives; to Directive 2004/18/EC, as the corresponding Directive with which PPL is approximated so far and to Directive 2014/24/EU, as the corresponding Directive, with which PPL should be further approximated. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 206 iii) EU Procurement Directive provisions more flexible as compared with the Albanian PPL provision (Albanian PPL provisions more rigorous as compared with EU Directive). As such provisions, we might mention for example provisions providing for the cancellation notice, the application of negotiated procedure with and without prior publication of a contract notice, the extension of time limit in case of modification of tender documents etc. 5.1.2 EU Directive provisions which need to be transposed into the Albanian PPL This section will analyze the impact of the provisions of the New Directive 2014/24, in the Albanian PPL. This analysis will be made considering the fact that PPL is still partially approximated with the Directive 2004/18 and on the other hand, the New Directive 2014/24 brings some other novelties compared to the Directive 2004/18. - Sub-central contracting authorities 787 The new directive covers contracting authorities, which are defined in the same way as under the directive 2004/18, but except for that list 788 , it provides also for a new definition of sub - central contracting authorities 789 . According to this definition, sub- central contracting authorities are all contracting authorities other than central government authorities. The new provision leaves the Member States scope to establish regulations by which sub-central contracting authorities receive more discretion and greater flexibility 790 . In concrete, higher thresholds apply to sub-central contracting authorities 791 . Also, the sub - central contracting authorities can use the prior information notice as a means for calling for competition (in the case of the restricted procedure and competitive dialogue) 792 . Furthermore, Member States may provide that all or specific categories of sub-central contracting authorities may establish a time period for the receipt of tenders (initial tenders) by mutual agreement between the contracting authority and selected candidates (in the case of the restricted procedure and competitive procedure with negotiations) 793 . As in the latest situation, Directive provides that Member States may provide for such solution, this provision is facultative for Member States themselves. The introduction of this definition for a separate category of contracting authorities, in the 787 See article 2/3 of Directive 2014/24/EU. 788 See the analysis done in Chapter I above. 789 The differentiation between central and sub-central contracting authorities provided by Article 2 follows the WTO Agreement on Government Procurement (GPA), by which the EU is bound. See further M. Burgi “Contracting authorities, in-house services and public authorities cooperation”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg.50. 790 Ibid, pg 52. 791 See article 4 (c) of Directive 2014/24/EU 792 See articles 26/5 and 48/2 of Directive 2014/24/EU. 793 See article 28/4 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 207 PPL, should be considered together with the introduction of the prior information notice 794 and should be seen in the light of flexibility that should or is needed to be applied to this category of the contracting authority. However, even if PPL decides not to implement such a definition, it should not be considered as not approximated in this regard, as long as the relevance of using it is only for situations which are strictly applicable only for Member States (as is the prior information notice 795 ), or they are optional even for Member States themselves (as is the possibility of establishing time limits by mutual agreement between the contracting authority and selected candidates). - Definition of public works contracts According to the new Directive 796 (which provides the same as Directive 2004/18 in this regard 797 ), ‘public works contracts’ means public contracts having as their object one of the following: (a) the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex II…” The definition of “public works contract” included in Article 3 (8) of the PPL generally, is in accordance with the EU definition. However, while a “work” is defined in Article 3 (9), there is no definition of works either by reference to other pieces of Albanian legislation (which would define this term for purposes of general application, such as for instance Construction law), or by reference to the list of specific works covered by the PPL, as it is the case of relevant Directive. - Social services and other specific services 798 With regard to services the new directive represents a significant change. The new directive abolishes the distinction between the so called priority and non - priority services 799 . In principle, all services are to be awarded in line with the same rules regardless of their subject. An exception has been made, however, in the Directive 2014/24, with regard to the so called “social services and other specific services” 800 . The regime of awarding those contracts under the new directive is more flexible than other 794 As it is discussed in Chapter III above, Prior Information Notice is an option for the contracting authorities of the Member States, and as such use of Prior Information Notices is therefore not obligatory. 795 Ibid. 796 See article 2/6 of Directive 2014/24/EU. 797 See article 1/ 2 (b) of Directive 2004/18/EC. 798 See articles 74-76 of Directive 2014/24/EU. 799 These services were accordingly listed in two annexes (A and B) to the Directive 92/50 and then 2004/18/EC. 800 “Social services and other specific services”, which are listed in Annex XIV of the directive are governed by special rules provided in Articles 74 – 76 of the directive. Unlike the list of non - priority services under Directive 2004/18/EC, the list of social and other special services is exhaustive one (there is no category of “other services”, which would cover all services not listed elsewhere). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 208 services (in particular, the threshold value above which such rules kick in is after all much higher 801 ) but, nonetheless, it is more demanding than the regime under 2004/18 directive, which governs the award of non - priority services. Thus, the new directive requires that: the contracting authorities which intend to award a contract for those services should make known their intention by means of a contract notice or a prior information notice (unless there are conditions, which allow the contracting authority to award a contract without prior notice publication, as in the case of the negotiated procedure without notice). After the award of contract, the contracting authorities should publish a contract award notice 802 . Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question 803 . The PPL (which does not provide for a distinction between priority and non priority services) 804 should consider the implementation of a specific regulation for social services and other specific services. The implementation of such specific regime will be very helpful for an effective implementation in practice of these types of services. This is because according to the actual regime, the rules applicable for procuring such services are the same as those followed for all other type of services, but taking into consideration the specific nature of social services, procurement of such services has encountered a lot of difficulties in practice 805 . Because of the lack of specific regulations in the field, social enterprises are not clear if they should exercise their activity as non-profit organizations or as business undertakings and especially the social enterprises registered as non-profit organizations are unsatisfied with their status 806 . One of the reasons of their dissatisfaction is related with the lack of incentives and a differentiated treatment, especially regarding their access to the procurement process (meaning more flexible and appropriate rules) 807 , considering their social mission 808 . In any case, the implementation 801 See article 4/d of Directive 2014/24/EU. 802 See article 75 of Directive 2014/24/EU. 803 Member States should ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price-quality ratio, taking into account quality and sustainability criteria for social services (see article 76 of Directive 2014/24/EU). 804 As discussed in Chapter IV above, regarding the service contracts, according to PPL, the specific regime is available to consultancy services only. 805 According to a study done in 2014, it results that the majority of the Social Enterprises in Albania, have begun their activity as non-profit organizations, about 15 years ago. Their activities are focused mainly on employment, education, economic development, and children and social care. Mostly, these kinds of organizations serve to youth, women and disadvantaged and vulnerable groups as well. See “Development of Social Enterprises, possibility for job vacancies for disadvantaged groups”, a study of Partners Albania, Center for Change and Conflict Management, Albania 2014, pg. 85-86 available at http://www.partnersalbania.org/zhvillimi_ndermarrjeve_sociale.pdf , retrieved May 5, 2015. 806 Ibid. 807 Ibid, pg 46. 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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