"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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2015 229 Also, Member States may implement provisions on division of contracts into lots in such a way that makes obligatory to award contracts in the form of separate lots under conditions to be specified in their national law and having regard for Union law. The Albanian implementing rules already provide for mandatory division of contracts into lots, but it provides and allows for this mandatory division, only in the case of contracts made up of a set of homogenous works, goods, or services as well as contracts where, due to their significant value, the competitions is limited, precisely in order to enable better access of SMEs to the public procurement market 907 . As such, the approach of the Albanian legislation is still much narrower especially compared with the new Directive’s approach. As emphasized above, in the Albanian system the division into lots is allowed only in the case of homogenous works, goods, or services, while according to the Directive, the division into lots is encouraged in any case, without any precondition. However, the analysis of the necessity of division of a contract into lots and furthermore, making it mandatory, should be done, considering at the same time the concrete environment where this provision will be implemented. Thus, the provisions of EU Directive, which intend to facilitate the access of SMEs in the public procurement process, should be read under the current context of the European Union. The Europe 2020 Strategy requires a more efficient use of public funds by improving the conditions for business to innovate and supporting the shift towards a resource-efficient and low- carbon economy. Directive 2014/24/EU has introduced simplified rules and procedures with the aim of opening EU markets (especially for SMEs). It aims, among other objectives, to overcome barriers to aggregation of public demand of goods, services and works and to foster cooperation between public entities, preventing any distortion of competition 908 . The mechanisms proposed by Directive, especially the one related with the (mandatory) division of the contracts into lots is justified with the need of the European Union to improve the business environment for SMEs throughout EU. The Albanian context, on the other hand, is rather different in this regard. As it is discussed earlier, procurement legislation in Albania promotes the access of SMEs in the procurement process through direct provisions (such as the one, requiring the division into lots) and through indirect provisions (such as the requirement on turn over of economic operators, which should not be more than the estimated value of the contract, requirement on past experience, which may vary from 0-40% for supplies and services contracts and 0-50% for works contracts, the implementation of e-procurement system, the possibility of direct payments to the sub-contractors, etc). Except for mechanisms of public procurement legislation, another important factor, which impacts the business environment of SMEs in Albania, is the economic power of the country 909 . According to 907 See article 9/5 of the Decision of Council of Ministers no. 914, date 29.12.2014 “Rules on Public Procurement”. 908 See G. M. Racca Joint Procurement Challenges in the Future Implementation of the New Directives; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg. 226-227. 909 The Gross Domestic Product (GDP) in Albania was worth 12.90 billion US dollars in 2013. The GDP value of Albania represents 0.02 percent of the world economy. GDP in Albania averaged 5.41 USD Impact of European Union public procurement legislation on the Albanian public procurement system 2015 230 the Sectorial Structural Reforms to Promote Competiveness and Growth 910 , the main objective of this reform initiative is to increase innovation capabilities and technological changes for SME-s. This objective is in compliance with the recommendations of the EC, under the Sub Committee for Trade, Industry, Taxation and Customs 2014 (SC TITC 2014 recommendation), to encourage competitiveness in all policy areas affecting SME- s. The SME sector has a substantial contribution to the economic growth and employment, respectively 80% of GDP and over 70% of total employment 911 . Considering that the SME sector has a substantial position in the Albanian economy on one hand and considering that the public funds at disposal of contracting authorities in Albania, to be procured, generally are not high values 912 , the possibility of SMEs to participate in the procurement process is considerably high. Also, the mandatory use of the e-procurement system, either for very low values 913 , facilitates a lot the access of SMEs in the procurement process 914 . As such, even if there is not a division into lots, generally the values of the procured contracts are not so high to serve as obstacles for SMEs to participate. In these conditions, the solution proposed by the Directive at issue, to encourage the division of contracts into lots, may serve as a very good one in the EU context, but will not necessary effect the Albanian system in this regard. However, apart for the transparent process provided to the SMEs in Albania, to promote and increase their participation in procurement procedures, it should be considered also the (low) level Billion from 1984 until 2013, reaching an all time high of 12.90 USD Billion in 2013 and a record low of 0.71 USD Billion in 1992. GDP in Albania is reported by the World Bank Group. See http://www.tradingeconomics.com/albania/gdp , retrieved on May 20, 2015. 910 National Economic Reform Programme of Albania 2015 – 2017 Sectorial Structural Reforms to Promote Competiveness and Growth (Part II) January 2015, available at http://www.ekonomia.gov.al/files/userfiles/Albania_NERP_2015.pdf , Retrieved May 20, 2015. 911 Strengthening technological capacities of SMEs is part of the Business and Investment Development Strategy 2014-2020 and in full compliance with SEE 2020 National Action Plan. That it contributes to Smart Growth pillar, and will contribute to headline target about increasing GDP per person employed through enhanced value added and productivity gains. Ibid, pg. 17. 912 Referring to the statistics on the type of procedures used by the contracting authorities, we will see that the procedure, which is used most during a year is the request for proposal (See PPA’ Annual Report 2010- 1014, available at www.app.gov.al , retrieved on April 10, 2015). As explained in Chapter V above, this procedure is used for relatively low value contracts (from ALL 800 000 up to ALL 8 million for supplies and services and ALL 12 million for works. Converted in euro these thresholds are approximately from 5.700 euro up to 57.000 euro for supplies and services and 85.000 euro for works). 913 The e-procurement system in Albania should be used for all procedures with a value up to around 7 hundred Euros. 914 According to a study done in 2013, economic operators, subject of the study, have stated that the use of the e-procurement system has increased the efficacy of the procurement process and the access of the economic operators in the process, compared to the paper based system. Some of the aspects, which are positively evaluated from the economic operators in this regard, are the speed of the process, increase of the competition, decrease of corruptive practices and decrease of administrative costs. See “The use of electronic system at a local level”, a study of Partners Albania, Center for Change and Conflict Management, Albania, 2013, pg. 20 and 29; available at http://www.partnersalbania.org/skedaret/1379588431-shqip_e_prokurimet.pdf , retrieved on May 18, 2015. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 231 of specialization in the field, of the SMEs personnel. In this case an effective measure will be preparation of simplified procurement documents and trainings of SMEs 915 . Considering the above analysis, when implementing this provision, the Albanian PPL may decide to stick to the wording of the directive and transpose the minimum requirements of this provision or to go further and to render division into lots obligatory, but this will not make any evolution in this regard. - European Single Procurement Document: The new Directive introduces the concept of the so called European Single Procurement Document (ESPD) 916 . According to this instrument, at the time of the submission of requests to participate or of tenders, the contracting authorities should accept the European Single Procurement Document, consisting of an updated self-declaration as preliminary evidence in the replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator meets the following conditions: a) It is not in one of the situations in which economic operators must or may be excluded; b) It meets the relevant selection criteria; c) Where applicable, it fulfills the objective rules and criteria that have been set out pursuant to Article 65 (short - listing). ESPD may be characterized as a document (in exclusively electronic form, two years after the expiry of the time period for implementation of the directive) which: Consists of a formal statement by the economic operator that the relevant ground for exclusion does not apply and/or that the relevant selection criterion is fulfilled and provides the relevant information as required by the contracting authority; Identifies the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents; Where the contracting authority can obtain the supporting documents directly by accessing a public database, the EPSD contains the information required for this purpose, such as the internet address of the database, any identification data and, where applicable, the necessary declaration of consent; 915 See also C. Evans “Public Sector Tendering Challenges for SMEs, Procurer Feedback Provision and Tendering Support Mechanisms: Insights from the Welsh Tender Review Services”, Charting a Course in Public Procurement Innovation and Knowledge Sharing, G. L. Albano, K.F.Snider and K.V.Thai (eds), by PrAcademics Press, USA, 2013, pg. 119-149. 916 See article 59 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 232 Could be reused provided that the economic operators confirm that the information contained therein continues to be correct. Introduction of such instrument is very helpful for economic operators and especially the SMEs, because it eliminates administrative burdens and administrative costs of participation, particularly with regard to documentation for the qualification of candidates (evidence for selection criteria) 917 . However, the basic problem with the reduction of the administrative burden in this context is of course that this can be taken too far. After all, this documentation for the qualification of tenderers is collected for a good reason: to protect the contracting authority and ultimately the taxpayer from unreliable, incompetent and incapable economic operators and the negative consequences for the procurement procedures and the completion of the eventual contract that the selection of such companies can have. A certain level of administrative burden is justified to avoid additional costs, the waste of time and effort in dealing with unqualified bidders, and the delay or other problems during contract implementation. Thus, there needs to be a balance between the administrative burden involved in proving qualification, on the one hand, and the protection of contracting authorities from unqualified bidders on the other hand 918 . As such, the effective application of this instrument requires an environment with high level integrity, which seems not to be the Albanian case. Still, this instrument should coexist together with the self-cleaning concept. Considering that the current approach of the PPL (which is considerably stricter than Directive (s)) does not provide for optional grounds for exclusions and does not accept self-declarations (from Albanian bidders 919 ), the implementation of the instrument at issue is almost impossible. However, maybe it’s time for Albania to consider more flexible rules on this regard, aiming at the reduction of administrative costs and increase of the efficiency in the procurement process. In any case, the introduction of more flexible rules should occur, providing that there is no risk for abusive behavior especially from economic operators’ side. - e-Certificates information mechanism (e-CERTIS) 920 917 See Recital no.84 of Directive 2014/24/EU, according to which ‘Many economic operators, and not least SMEs, find that a major obstacle to their participation in public procurement consists in administrative burdens deriving from the need to produce a substantial number of certificates or other documents related to exclusion and selection criteria. Limiting such requirements, for example through use of a European Single Procurement Document (ESPD) consisting of an updated self-declaration, could result in considerable simplification for the benefit of both contracting authorities and economic operators’. 918 See 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. 266. 919 It should be noted, however, that PPL does accept self-declaration for proving at list their legal situation, only from foreign economic operators. This differentiated treatment is a clear indicator of the negative opinion on the level of integrity of the Albanian economic operators. 920 See articles 59-61 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 233 The new Directive has introduced another solution in order to facilitate the access of economic operators to public procurement procedures by reducing the paperwork, such as the application of e-Certificates information mechanism (e-CERTIS). This is a tool, which can help an economic operator wishing to submit a proposal in response to a call for tenders held in another country covered by eCERTIS as well as a contracting authority that has to evaluate a foreign tender to understand what information is being requested or provided. It can also help to identify documents that match certificates and attestations that are required in a given country. According to the new directive, eCERTIS is an online repository of certificates, where suppliers can find out the type of documents, which they may be asked to provide in any EU country, even before they decide to bid. This should be of particular help when suppliers wish to bid cross-border, as they may be unfamiliar with the detailed requirements of other EU Member States. As it is prescribed, the application of this information mechanism is strictly related and dedicated to the EU Member States, and seems to ‘support’ the Single European Procurement Document’ instrument. In this context, it is not a requirement that should be imposed on a non- Member State. However, PPL might consider the application of this tool as it might be with high importance especially for foreign economic operators, submitting a request for participation or a tender in Albania. - Dynamic Purchasing System Differently from Directive 2004/18, where the dynamic purchasing system was an option for Member States 921 , Directive 2014/24 provides this system as an option for contracting authorities 922 . The most important innovations in applied rules for the dynamic purchasing system are the following: In order to procure under a dynamic purchasing system, the contracting authorities should follow the rules of the restricted procedure (unlike under 2004/18/EC Directive where it is the open procedure) 923 ; Since the open procedure is not applied in order to set the dynamic purchasing system, the economic operators do not submit indicative tenders but request to be admitted to the system (within 30 days since dispatch of a contract notice); 921 See article 33 of Directive 2004/18/EC. 922 See article 34 of Directive 2014/24/EU. 923 However, the reference to the restricted procedure may be slightly misleading since the dynamic purchasing system and the restricted procedure share only the first stage of the restricted procedure. Unlike it is the case of the restricted procedure, while using the dynamic purchasing system, the contracting authority may not limit the number of candidates admitted to the system; all candidates, who meet the minimum qualification criteria set by the contracting authority should be admitted to the system. Once this system is established, it is open to all potentially interested economic operators, who may submit a request to be admitted at any time; Impact of European Union public procurement legislation on the Albanian public procurement system 2015 234 There is no publication of any simplified contract notices in the event the contracting authority procures goods or service covered by the system, but the contracting authority invites directly economic operators included in the system to submit tenders within the minimum time period which is 10 days. Since the dynamic purchasing system is not yet provided under the Albanian procurement provisions (other than its definition 924 ), the implementation of the directive in that regard requires the transposing of relevant provisions practically from scratch. While according to the Directive 2004/18/EC, this was an optional tool, according the new Directive it is not any more optional and as such, the position of PPL in this regard has changed and formally speaking, there is not much choice but to implement provisions at issue. Nevertheless, the implementation of the dynamic purchasing system will not be impossible and inappropriate in the Albanian context. This might require a further development of the electronic platform, already in use, but in practice it will be easily absorbed (from both sides; the contracting authorities and the economic operators) in a working environment, where the e-procurement is being used from several years now. - Electronic auctions The situation with the provisions on electronic auction is generally the same as with the dynamic purchasing system. The new Directive contains generally the same provisions on e – auctions 925 , compared to the Directive 2004/18 926 but as in the case of the dynamic purchasing system, the use of e- auctions under the new Directive is not facultative for Member States 927 . Same as in the case of the dynamic purchasing system, PPL (apart of providing a definition) has not effectively implemented the electronic auctions. While according to the Directive 2004/18, this was an optional tool, according to the new Directive it is not any more optional. Consecuently, the position of PPL in this regard has changed and as such the relevant provisions of the new Directive should be transposed into the PPL. - Qualification and award criteria Download 5.49 Kb. Do'stlaringiz bilan baham: |
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