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- 2015 67 CHAPTER II HISTORY AND PROGRESS OF THE PUBLIC PROCUREMENT SYSTEM IN ALBANIA AND THE EUROPEAN UNION
- 2.2 Reintroducing the concept of public procurement after the ’90
- 2.3 The First Law on Public Procurement in Albania
- 2.4 Early steps for approximating public procurement framework to the EU Directives
2015 65 effectiveness. While the second way theoretically might be more effective (by avoiding bureaucracy you save time, gain quality, increase competitiveness). The differences in the objectives both between different public procurement systems and between private bodies and public bodies, to some extent, explain the difference in the approach to procurement and the rules that govern it. To give just one example, a system that places great weight on accountability is more likely to provide for a detailed, rule-based system, which allows for close public monitoring of the procurement process than one that does not, even to the extent that adherence to rigid rules may cause some loss to value for money or efficiency in particular procurement procedures 204 . This shows clearly that regulation of a certain public procurement system is closely linked to a political, economic and social environment, where it will be implemented. Integrity, as analyzed more above, is a very important factor, which directly impacts on the definition of objectives aimed at being fulfilled by the procurement regulation. On the other hand, in a procurement system, not only procurement rules reflect the environment where they are applied, but even the needs of the contracting authorities will also reflect the political and social color of the government or the country in question. Its assessment of value for money will thus need to take into account the range of political and social policies it pursues. As a concept, ‘value for money’ is thus heavily contingent. It is contingent on individual’s preferences, on the availability of differentiated products and services and on the political and social value judgments of governments, which reflect the collective will and preferences of the majority. It does not have meaning independent of the person or entity, whose value judgments are at issue 205 . Another factor, which does impact the approach of a given procurement system is the ‘historic factor’. As will be further discussed in the following chapter, the public procurement system is known within the EU for more than 50 years, and it is a system, which has undergone drastic changes and improvements to come to the actual procurement system of today. Full assimilation of the EU procurement system by its Member States has been and is still being done gradually and in parallel with the consolidation of the EU itself and the improvement of the public procurement system. On the other hand, the Albanian public procurement system has rather a short history and as such it did not pass all the evolution phases, as in the other European Union countries. This, of course, is reflected in the public procurement provisions, which tend to regulate in detail all procedural and administrative steps, aiming at having under control an ‘unknown’ process 206 . 204 See S. Arrowsmith “Public Procurement: Basic Concepts and the Coverage of Procurement Rules”, Public Procurement Regulation-an introduction, pg. 5, Available on-line at http://www.nottingham.ac.uk/pprg/documentsarchive/asialinkmaterials/publicprocurementregulationintrod uction.pdf . Retrieved on, 20.12.2014. 205 P. Trepte “Regulating Procurement - understanding the ends and means of public procurement regulation”, Oxford University Press Inc., New York, 2004 (reprinted in 2006), pg. 390. 206 See Law no.7971/1995 ‘On public procurement’ Official Gazette no. 18/1995, pg. 778. This has been the first law regulating the public procurement system in Albania and it reflects in its articles the fact that Impact of European Union public procurement legislation on the Albanian public procurement system 2015 66 Political context is another factor that impacts the procurement system. Thus, for example, the procurement system in EU Member States does reflect the fact that these countries are part of the EU and as such their governing rules should be in line with Treaty principles and all the rest of the EU legal regimes. Member States are bound to take all appropriate measures to ensure the fulfillment of the obligations arising out of the Treaty or resulting from actions taken by the institutions of the Union. The procurement Directives, are by definition not directly applicable, i.e. they do not apply automatically 207 . In order to produce their effects within the Member States, they need to be implemented or “transposed” into national law. The Member States are, therefore, required to take the measures necessary to give full effect to the provisions of the Directives in national law and to ensure that no other national provisions undermine their applicability. This normally takes the form of a transposition of the Directives into national law and the abrogation of all contrary legislative provisions. The Albanian procurement legislation, on the other hand, does also reflect the political commitments of the Albanian Government toward the integration process in the EU. The signing by Albania of the Stabilization and Association Agreement (SAA) meant engagement and obligation to approximate the domestic legislation to the European legislation 208 . In this regard, the provisions of the new legal framework on public procurement in Albania 209 were dictated from the respective EU Directives, signing in this way the first steps towards the approximation of the public procurement legislation with acquis communautaire 210 . there is a lack of previous experience on the field. The history of public procurement system in Albania will be treated in the following chapter. 207 See R. H. Folsom “Principles of European Union Law”, Concise Hornbook Series, Thomson West, 2005, pg.73, par. 2. 208 This subject will be trated in details in Chapter V, below. 209 Law 9643/2006 ‘On public Procurement’ was drafted and approved after the SAA was signed, and as such it was the first legal act in the field starting the approximation process. 210 See Albania 2007 Progress Report of European Commission, point 4.1.6 Public Procurement. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 67 CHAPTER II HISTORY AND PROGRESS OF THE PUBLIC PROCUREMENT SYSTEM IN ALBANIA AND THE EUROPEAN UNION 2. Introduction The concept of Public Procurement in Albania is “old” and “new” at the same time. It is an “old” concept as its initial legal regulation dates back to the mid ’30s, and it is at the same time “new” because it did not pass all the evolution phases, as in the other European Union countries. Public procurement ceased to exist in Albania by the mid ’40s and appeared again as a concept and as a process after the 1990s. This course of public procurement in Albania is tightly related to the political history of the country. 2.1 The beginnings of the public procurement concept in Albania The first traces of public contracts awarded by the state administration to a private entrepreneur, through a competitive procedure, for the purchase of goods, services or works, are found in a special chapter of an act published in the Official Journal of May 22 nd , 1936, pg. 3-9 211 . Types of contracts allowed to the public administration, as well as the legal form to enter in such contracts are stipulated in this chapter. According to article 19 of this act, contracts awarded by the state administration for its own needs for goods, services, works, selling, as well as concessions, shall be deemed as legal only in such case that they are awarded following one of these processes: a) public auction; b) invitation to bid 212 ; or c) private agreement. According to this act, the general rule is that contracts are awarded by the state administration through a public auction process, i.e. open competition. Further on, this act regulates the situations and the conditions when contracts may be awarded by sending an invitation to bid 213 to several private entrepreneurs in order to receive offers in relation to the aimed contract. At any case, this type of proceeding is considered as an exemption, considering that the general rule, as 211 Department of Public Administration, “100 Vjet Administratë”, No.12, 13, 14, Botime Pegi, 2012, pg. 166-170. 212 The original term used for this procedure at the referred act, is “licitation”. 213 Article 20 regulating the contracts of the public administration, stated that: “According to article 5 of the law as amended by article 1 of the Decree of Law of 13.6.1929, a contract may be awarded through invitation to bid 1) when public auction fails; 2) for all kinds of supply, for transport, or works, when an urgent need does not allow for the necessary deadlines for a public auction; 3) for the purchase of materials, vehicles, or artistic products, which should be bought at the place of production, or that their production should be entrusted to specialized houses; 4) when, despite of the object of contract, the foreseen price of the contract does not exceed 2000 franga ari {golden francs} and cannot be repeated by the administration earlier than three months. In the case mentioned in point 1 of this article, conditions, including the price to be established in the contract awarded through licitacjon, cannot be less favorable for the state, than those established before in the public auction carried on for the same contract”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 68 described above is that of a public auction. Further on, article 21 of this act provides for the cases when purchase of goods, services and works, may be conducted through a private agreement. Awarding a private agreement meant that there was no preliminary public notice for the object of such agreement. Both articles 20 and 21 of this act provide for the specific cases when institutions of public administration are allowed to award a private agreement. The following articles provided for the procedures to be followed for the publication of the notice and for the implementation of the public auction or invitation to bid procedure. Interestingly, the terms and conditions for the selection of one of the procurement procedures (either the public auction as a general rule, or a less transparent procedure such as the invitation to bid or the private agreement), in essence have been similar to those provided for by the actual legislation of public procurement. The slight differences consist more to a terminological character than to the content of the rules. With the adoption of the communist system in Albania and considering the political and economic features of such system, in particular the property regime, for a period of nearly 50 years, public procurement “ceased” to exist. Forbidding private entrepreneurship, the system did not allow for the concept of public procurement, which is basically a contract between a public entity and a private one 214 . 2.2 Reintroducing the concept of public procurement after the ’90 In 1990, although there was still a communist regime, Albania was undergoing political changes. In this frame, there is a return of the concept of “private”, which inevitably brought the reintroduction of the “public procurement” concept. DCM no. 400 of 17 November 1990 “On the purchase and realization of services outside the state sector”, provided that enterprises and institutions, for fulfilling their own needs, were allowed to buy primary tools, equipment, goods and materials as well as services against payment. This Decision mentions also the evaluation criteria, which were either the price approved in advance, or the lowest price, which was evaluated by a commission created within the institution. After this first transition phase and the evolution of the concept of private entrepreneurship and the free market, an evolution of the concept and of the legal framework regulating the public procurement system in Albania was required as well. DCM no. 191 of 22 March1993 “On the system of public purchase and the activity of buying and of services realized by enterprises and institutions financed by the state budget”, provided for situations and detailed rules for the purchase of goods and services, but the term “public procurement” had not been introduced yet. However, this act mentions for the first time the foreign private economic entities, which are presented as 214 See DCM no. 107, of date 12.07.1968 “On forbiddance of purchase and realization of services out of the socialist sector”, which forbid all institutions, enterprises and artisanal cooperatives, to effect purchases for fulfilling their needs for equipment, goods and materials, out of the socialist sector. This decision forbade also realization of services out of the socialist sector, apart for transport with animals and loading/unloading. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 69 potential entrepreneurs for being awarded public contracts by the state institutions. This Decision also defines the other elements of public procurement like the evaluation criteria, which in this case was the lowest price offered as well as the evaluation method by the Offer Evaluation Commission. A particularity of this phase is the fact that public works (constructions) are not mentioned by the decisions, which provide for the process of awarding a public contract. The term “procurement”, referring to the purchase of goods, works and services, is mentioned for the first time by DCM no. 467 of 17 August 1993 “On procedures for procurement with public funds”. This decision regulates in a more complete and detailed way the public procurement procedures. In this decision, investments are mentioned for the first time by providing that selection of private entrepreneurs for awarding the contract should be done through a public procurement process. The decision gives a clear definition of the procurement process and all its elements and envisages for the first time several procurement procedures and when they have to be applied. Rules for the procedures, deadlines, establishment of evaluation commissions are also foreseen in detail. This decision gains a great importance for that time, as it is the first normative act, which provides for and regulates in full, the public procurement system in Albania. 2.3 The First Law on Public Procurement in Albania Even though the public procurement concept has been reintroduced from 1990, still in 1995 there was no law on public procurement in Albania 215 , leaving an incomplete legal framework. Considering the greater importance gained by public procurement, especially within the frame of an open market economy, it was necessary to have an apposite law regulating this sector. In this context, a law on public procurement was drafted and approved. Law no. 7971 of 26 July 1995 “On public procurement” was based on the model law on procurement of goods, civil works and services adopted by UNCITRAL (United Nations Commission on International Trade Law) 216 . Thereafter, secondary legislation was also approved, such as the Instruction of the Council of Ministers (ICM) 215 Up to that time, the public procurement process has been regulated by secondary legislation. 216 Model law on procurement of goods, civil works and services adopted by UNCITRAL aimed to serve as a model for developing countries for assessing and improving their public procurement law and/or for preparing public procurement legislation in those countries where such legislation did not exist, as it was the Albanian case in 1995. The Model Law is purely a model to assist states – it is not a legally binding document in any way - and states are free to accept or reject bits of the Model as they wish. Even if states accept most of the provisions in it, it is envisaged that additional regulations will be needed to fill out the details of the Law and to adapt it to the particular state: for example, to state the thresholds at which informal procedure such as the "request for quotations" should apply. The Model Law is intended only to provide a framework for regulation of procurement and not a complete and comprehensive code. When the Model Law was adopted it was envisaged that it would be used mainly by developing countries. Its main influence was initially felt in Eastern and Central Europe, but it is now being used increasingly in other places, including in many African countries and many in Asia. www.uncitral.org Impact of European Union public procurement legislation on the Albanian public procurement system 2015 70 no. 1, dated 01 January 1996 “On public procurement”, as amended 217 and Decision of Council of Ministers (DCM) no. 335, dated 23 June 2000 “Rules of public procurement”, as amended 218 . This has been a step further towards the development of the public procurement system in Albania. Since 1995 and up to 2006 the law has undergone many changes dictated by the dynamics of the economic situation in Albania, as well as by the issues faced in application of the law itself. 219 However, despite several changes of the law and the secondary legislation package, throughout a period of more than 10-years (1995 - 2006), the legal framework was still far from being in line with the EU’s Directives 220 . 2.4 Early steps for approximating public procurement framework to the EU Directives 2.4.1 Impact of the Stabilization and Association Agreement in public procurement In 2006 a radical change of the public procurement framework was necessary, mainly for two reasons: (i) public procurement legal framework and issues faced by its application in practice, and (ii) Albania’s commitments towards integration to the EU 221 . The signing by Albania of the Stabilization and Association Agreement (SAA) 222 meant engagement 217 This Instruction has been amended by ICM no. 1, dated 24 May 2002, ICM no. 3, dated 10 July 2003, ICM no. 4, dated 16 June 2005, ICM no. 1, dated 18 January 2006, ICM no. 2, dated 27 January 2006, ICM no. 3, dated 6 May 2006, and ICM no. 4, dated 14 June 2006. 218 This Decision has been amended by DCM no. 228, dated 24 May 2002, DCM no. 337, dated 01 June 2004, DCM no. 36, dated 18 January 2006, DCM no. 127, dated 02 March 2006, DCM no. 241, dated 19 April 2006, DCM no. 570, dated 23 August 2006. 219 Law no. 7971, dated 26 July 1995 “On public procurement” has been amended by Law no. 8039, dated 23 November 1995, Law no. 8074, dated 22 February 1996, Law no. 8112, dated 28 March 1996, Law no. 8767, dated 05 April 2001, Law no. 9064, dated 08 May 2003, Law no. 9872, dated 14April 2005 and Law no. 9450, dated 15 December 2005. 220 According to Albania 2005 Progress Report, of European Commission, point 3.1.6 Public Procurement, “Albanian public procurement legislation, which dates from 1995, has undergone a number of changes (most recently in June 2005). The current legislation is based on definitions, basic principles, procedures, thresholds, evaluation and award criteria, publication requirements and review procedures, which are fundamentally different from those of EU legislation…”. http://ec.europa.eu/enlargement/archives/pdf/key_documents/2005/package/sec_1421_final_progress_repo rt_al_en.pdf 221 According to Albania 2005 Progress Report, of European Commission, point 3.1.6 Public Procurement, last paragraph “Very considerable further efforts will be necessary if Albania is to ensure the correct implementation of procurement rules. Significant improvements are needed in the legislation to align it with the acquis and to provide full coherence…”. http://ec.europa.eu/enlargement/archives/pdf/key_documents/2005/package/sec_1421_final_progress_repo rt_al_en.pdf 222 Stabilization and Association Agreement between the European Communities and their Member States, on the one part, and the Republic of Albania, on the other part was signed on 12 June 2006 in Luxembourg and entered into force on 1 April 2009, after ratification from 25 EU Member’ Countries at the time the SAA was signed. SAA’s general frame consists of 4 pillars: political dialogue and regional cooperation; 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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