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2015 223 The Directive at issue determines also ‘a non-suitable’ tender or request for participation 872 . This provision contains more details than its equivalent from Article 31 (1) b) of 2004/18/EC Directive: “artistic reasons” were replaced with “creation or acquisition of a unique work of art or artistic performance”; an example of “exclusive rights” is provided – intellectual property rights 873 . 2. For new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded in a procedure with previous call for competition 874 . The basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded. Also, the new directive does not contain the equivalent of the provision related to the award of additional works or services in the circumstances described in Article 31 (4) a) of 2004/18/EC Directive. This does not seem necessary in the light of the new provisions concerning modifications of contracts 875 . The relevant provision of PPL on negotiated procedure without prior publication of a notice should be adapted with the respective changes of the new Directive, having also into consideration the grounds for abusive behavior of this kind of procedure 876 . - Modified rules concerning publication of procurement notices a) for public works contracts, public supply contracts and public service contracts in any of the following cases: where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission where it so requests. b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons: i. the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance; ii. competition is absent for technical reasons; iii. the protection of exclusive rights, including intellectual property rights; 872 A tender is not suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents. A request for participation is not suitable where the economic operator concerned is to be or may be excluded pursuant or does not meet the selection criteria. 873 See also J. Davey “Procedures involving negotiation in the new Public Procurement Directive: key reforms to the grounds for use and the procedural rules”, Public Procurement Law Review, 2014, 3, Sweet & Maxwell, London 2014, pg. 103-111. 874 In this case, instead of reference to the open or restricted procedure (as Directive 2004/18/EC 874 ), the new Directive makes a reference to any procedure with previous call for competition (i.e. the competitive procedure with negotiations and the competitive dialogue). 875 Modification of contracts will be discussed below. 876 See the analysis made in Chapter IV. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 224 Even though the new Directive does not bring significant changes regarding procurement notices, it has provided, however, for some more facilities if PIN 877 is used. Thus, sub – central contracting authorities may use PIN 878 as a means of calling for competition in the restricted procedure and in the new competitive procedure with negotiations. In such case, the publication in the buyer’s profile does not suffice; the notice must be published in the OJEU 879 . Another change in this regard is that the threshold values referred to in the Directive 2004/18/EC 880 have been abolished. According to the new Directive at issue, there are no limitations concerning the value of (future) contracts covered by PIN 881 . With regard to the contract notice, there are no notable modifications but one, concerning the publication of the contract notice. Under the 2004/18/EC Directive, the publication of a contract notice at national level may not take place before the date on which it was sent to the Commission 882 , while under the new rules, the notice “shall not be published at national level before the publication pursuant to Article 51. However, publication may in any event take place at the national level where contracting authorities have not been notified of the publication within 48 hours after confirmation of the receipt of the notice in accordance with Article 51” 883 . With regard to a contract award notice, the new Directive provides a rule that such a notice should be published not later than 30 days following a decision to award a contract 884 , shortening as such the time period provided by Directive 2004/18/EC 885 . As discussed earlier 886 , the PPL have no provisions on prior information notice (PIN). However, as this instrument is optional even for Member States, even if it is not implemented in the PPL, the latter should not be considered as inconsistent with EU law. Also, regarding the time period for publication of the contract award notice, at the time being, PPL provides for much shorter period than it is required by both the old (48 days) as well as the new directive (30 days). In this case, the Albanian PPL can opt for keeping the current time period or extending it to maximum allowed by the directive (i.e. 30 days). - Time periods 877 The new Directive does not provide significant changes concerning PIN, the basic advantage of its publication for the contracting authority remains that it can shorten, after having duly published PIN, time periods for submission of tenders. See the analysis in Chapter III above. 878 However, as mentioned above, the option concerning the use of PIN instead of a contract notice is facultative for Member States. They can make it available for all or a part of the sub – central contracting authorities. 879 See article 48/2 of Directive 2014/24/EU. 880 See article 35/1 of Directive 2004/18/EC. 881 See article 48/1 of Directive 2014/24/EU. 882 See article 36/5 of Directive 2004/18/EC. 883 See article 52 of Directive 2014/24/EU. 884 See article 50 of Directive 2014/24/EU. 885 See article 35/4 of Directive 2004/18/EC 886 See the detailed analysis in point 3.2, Chapter III. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 225 The new directive significantly reduced minimum time periods for receipt of requests or tenders 887 . Thus, notwithstanding the basic rule that requires taking account of the complexity of the contract and the time required for drawing up tenders, the minimum time periods provided by the Directive at issue are as follows: In principle, the time period for submission of tenders in an open procedure should be at least 35 days counted from the date of sending the contract notice 888 . The minimum time periods in case of using a restricted procedure should be: receipt of requests for participation 30 days counting from the dispatch of the contract notice (or, in the case of using PIN as a means for calling for competition since the date of sending the invitation to confirm interest); receipt of tenders 30 days since the date of sending the invitation to tender 889 . Minimum time periods for the competitive dialogue procedure are 30 days for the receipt of requests for participation. Minimum time periods in case of using a competitive procedure with negotiations should be: receipt of requests for participation 30 days from sending the notice (or, in the case of application of PIN – 30 days from sending the invitations to confirm interest); receipt of initial tenders 30 days since the date of sending the invitation to tender. Minimum time periods for the innovation partnership procedure are 30 days for the 887 See also G. Fletcher “Minimum time limits under the new Public Procurement Directive”, Public Procurement Law Review, 2014, 3, Sweet & Maxwell, London 2014, pg. 94-102. 888 According to the new Directive, shortened time periods are allowed in the following situations: in the case of publication of PIN not being a call for competition, the time period is shortened to 15 days; in the case of a state of urgency duly substantiated by the contracting authority, the time period is shortened to 15 days; in the case of submitting tenders electronically, the time period is shortened to 30 days. 889 These time limits may be shortened: in the case of publication of PIN not being a call for competition, the time period is shortened to 10 days; in the case of contracting authorities other than central contracting authorities, the time period may be set by mutual agreement between the contracting authority and the selected candidates, provided that all selected candidates have the same time to prepare and submit tenders. In the absence of agreement on the time limit for the receipt of tenders, the time limit shall be at least 10 days from the date on which the invitation to tender was sent 889 ; in the case of submitting tenders electronically, the time period is shortened to 25 days; in the case of a state of urgency duly substantiated by the contracting authority, the time period is shortened to: 15 days for the receipt of requests and 10 days for the receipt of tenders. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 226 receipt of requests for participation. As discussed in Chapter IV above, PPL foresees different time limits from both Directives at issue. Thus, in case of open procedures it provides for a longer time period compared to the new Directive 890 . In case of restricted procedures, the time periods provided by PPL are shorter than those provided by both Directives. Considering these differences, and time periods for new procedures, which are not yet implemented by PPL, new time limits, respectively for each of the procedures should be introduced. - Central purchasing According to the new Directive 891 , Member States may provide that contracting authorities may acquire supplies and/or services from a central purchasing body offering the centralized purchasing activity. Member States may provide that contracting authorities may acquire works, supplies and services by using contracts awarded by a central purchasing body, by using dynamic purchasing systems operated by a central purchasing body or, by using a framework agreement concluded by a central purchasing body offering the centralized purchasing activity. Where a dynamic purchasing system, which is operated by a central purchasing body, may be used by other contracting authorities, this shall be mentioned in the call for competition setting up that dynamic purchasing system. Member States may provide that certain procurements have to be made by having recourse to the central purchasing bodies or to one or more specific central purchasing bodies 892 . However, the contracting authority concerned should be responsible for fulfilling the obligations pursuant to the directive in respect of the parts it conducts itself, such as: a) awarding a contract under a dynamic purchasing system, which is operated by a central purchasing body; b) conducting a reopening of competition under a framework agreement that has been concluded by a central purchasing body; c) determining which of the economic operators, a party to the framework agreement, should perform a given task under a framework agreement that has been concluded by a central purchasing body. 890 The comparison is done referring to the time limits provided for open international procedures, which have implemented the relevant time limits of Directive 2004/18/EC, 52 days. 891 See article 37 of Directive 2014/24/EU. The provision of the new Directive, in this regard, is much more detailed than relevant provisions of Directive 2004/18/EC (see articles 1/2 (10) and article 11). 892 See also C. R. Hamer “Regular purchases and aggregated procurement: the changes in the new Public Procurement Directive regarding framework agreements, dynamic purchasing systems and central purchasing bodies”, Public Procurement Law Review, 2014, 4, Sweet & Maxwell, London 2014, pg. 205- 206. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 227 It should be underlined that according to the new Directive all procurement procedures conducted by a central purchasing body should be performed using (exclusively) electronic means of communication 893 . Contracting authorities may, without applying the procedures provided for in the directive, award a public service contract for the provision of centralized as well as ancillary purchasing activities. The latter are defined as activities consisting in the provision of support to purchasing activities, in particular in the following forms 894 : a) technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services; b) advice on the conduct or design of public procurement procedures; c) Preparation and management of procurement procedures on behalf and for the account of the contracting authority concerned. As PPL has already introduced the central purchasing instrument 895 (even though it is optional for Member States), it has to change its relevant provisions, to comply with relevant provisions of the new Directive. The main change should be regarding the use of the dynamic purchasing system and the framework agreement. As per the obligation of using only electronic means for procurement procedures conducted by a central purchasing body, it should be noted that the procurement legislation in Albania has already been accomplished 896 . - Access of SMEs to public contracts One of the purposes of adoption of a new directive on public procurement was making access to the procurement market easier for small and medium entrepreneurs 897 . Accordingly, the new directive contains four main ‘innovations’ directed at the promotion of SMEs: the division of contracts into lots 898 , the European Single Procurement Document 899 , the limitations of requirements for participation 900 , and direct payments to subcontractors 901 . Behind the promotion of SMEs, there is often the intention to promote the local economy; smaller companies will often be local companies. Since 893 However, it should be noted that the aapplication of the electronic communication may be postponed by Member States until 36 months after the entry into force of the directive. 894 See article 1/1 (15) of Directive 2014/24/EU. 895 Article 11 of PPL. 896 See the discussion on the mandatory use of the electronic system in Albania, point 2.4.3, Chapter II. 897 This purpose has been stated in Recital 2 of Directive 2014/24/EU, providing among others that “…Directive 2004/18/EC of the European Parliament and of the Council should be revised and modernized in order to increase the efficiency of public spending, facilitating in particular the participation of small and medium-sized enterprises (SMEs) in public procurement..,”. 898 See Recitals no.78-79 and article 46 of Directive 2014/24/EU. 899 See article 59 of Directive 2014/24/EU. 900 See article 58 of Directive 2014/24/EU. 901 See article 71 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 228 ‘local’ normally means national, this implies a protectionist objective which cannot be reconciled with the objectives of the Internal Market and its procurement Directives 902 . As such, one of the main mechanisms proposed by the Directive to promote and facilitate the access of SMEs throughout the EU market is the encouragement of contracting authorities to divide the contracts into lots. According to new Directive 903 , the contracting authorities may decide to award a contract in the form of separate lots and may determine the size and subject-matter of such lots 904 . Even though the wording used in this provision “may” implies that the contracting authorities are allowed but not obliged to award contracts in separate parts, the new Directive is more than ‘optional’ in this regard 905 providing in the same provision that “Contracting authorities shall, except in respect of contracts, whose division has been made mandatory, provide an indication of the main reasons for their decision not to subdivide into lots, which shall be included in the procurement documents or the individual report 906 .” When the procurement is divided into lots, the contracting authorities should indicate in the contract notice or in the invitation to confirm interest, whether tenders may be submitted for one, for several or for all of the lots. It seems that this provision provides for a possibility that the contracting authority prohibits application by the same economic operator for all lots. The directive then goes on stating that the contracting authorities may, even where tenders may be submitted for several or all lots, limit the number of lots that may be awarded to one tenderer, provided that the maximum number of lots per tenderer is stated in the contract notice or in the invitation to confirm the interest. The contracting authorities should indicate in the procurement documents the objective and non- discriminatory criteria or rules they intend to apply for determining which lots will be awarded, where the application of the award criteria would result in one tenderer being awarded more lots than the maximum number. There is a facultative solution in the directive for which Member States may opt that, where more than one lot may be awarded to the same tenderer, the contracting authorities may award contracts combining several or all lots where they have specified in the contract notice or in the invitation to confirm interest that they reserve the possibility of doing so and indicate the lots or groups of lots that may be combined. 902 See further M. Trybus “The Promotion of Small and Medium Sized Enterprises in Public Procurement: A Strategic Objective of the New Public Sector Directive?” François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg. 257. 903 See article 46 of Directive 2014/24/EU. 904 However the EU approach is heavily oriented toward simplification policies to reduce the burden for SMEs of participating to tenders, but it excludes the possibility of set-asides or preferences in public procurement. See further M. Fana and G. Piga ‘SMEs and public contracts. An EU based perspective’, ‘EU Public Procurement-Modernisation, Growth and Innovation. Discussions on the 2011 proposals for Procurement Directives’ 1st Edition, Djøf Publishing, Copenhagen, Denmark, 2012, pg. 33-54. 905 The Directive 2004/18/EC, on the other hand does not provide for such requirement. 906 See article 84 of Directive 2014/24/EU. 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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