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- 2.4.2 New law on public procurement and its approximation process
2015 71 and obligation to approximate the domestic legislation to European legislation 223 . More specifically, the commitment of Albania in the public procurement field in the frame of the SAA derives from articles 70 224 and 74 225 . According to these articles, Albania does undertake in the field of public procurement two main obligations, as follows: - Approximation of Albania's existing legislation to that of the Community and its effective implementation; and - Opening-up of the award of public contracts on the basis of non-discrimination and reciprocity. Based on article 70 of the SAA, approximation will be carried out on the basis of a programme to be agreed between the Commission of the European Communities and Albania. Albania shall also define, in agreement with the Commission of the European commercial provisions for a progressive liberalization of exchanges up to the establishment of a free area of commerce between the parties; community freedoms; and cooperation in priority sectors such and in particular in the judiciary and the internal affairs. 223 According to the article 6 of the SAA, the association shall be implemented progressively and shall be fully realized over a transitional period of a maximum of ten years, divided into two successive stages. In the field of legal approximation and law enforcement, the aim shall be for Albania to concentrate in the first stage on the fundamental elements, with specific benchmarks, of the acquis. See SAA document at: http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf 224 According to article 70 of the SAA “The Parties recognize the importance of the approximation of Albania's existing legislation to that of the Community and of its effective implementation. Albania shall endeavor to ensure that its existing laws and future legislation shall be gradually made compatible with the Community acquis. Albania shall ensure that existing and future legislation shall be properly implemented and enforced. This approximation shall start on the date of the signing of this Agreement, and shall gradually extend to all the elements of the Community acquis referred to in this Agreement by the end of the transitional period as defined in Article 6. During the first stage as defined in Article 6, approximation shall focus on fundamental elements of the Internal Market acquis as well as on other important areas such as competition, intellectual, industrial and commercial property rights, public procurement, standards and certification, financial services, land and maritime transport – with special emphasis on safety and environmental standards as well as social aspects – company law, accounting, consumer protection, data protection, health and safety at work and equal opportunities. During the second stage, Albania shall focus on the remaining parts of the acquis...” See SAA document at: http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf 225 According to article 74 of the SAA “The Parties consider the opening-up of the award of public contracts on the basis of non-discrimination and reciprocity, in particular in the WTO context, to be a desirable objective. Albanian companies, whether established or not in the Community, shall be granted access to contract award procedures in the Community pursuant to Community procurement rules under treatment no less favorable than that accorded to Community companies as from the date of entry into force of this Agreement. The above provisions shall also apply to contracts in the utilities sector once the government of Albania has adopted the legislation introducing the Community rules in this area. The Community shall examine periodically whether Albania has indeed introduced such legislation. Community companies not established in Albania shall be granted access to contract award procedures in Albania pursuant to the Albanian Law on Public Procurement under treatment no less favorable than that accorded to Albanian companies at the latest four years after the date of entry into force of this Agreement. The Stabilization and Association Council shall periodically examine the possibility of Albania introducing access to contract award procedures in Albania for all Community companies.” See SAA document at: http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf Impact of European Union public procurement legislation on the Albanian public procurement system 2015 72 Communities, the modalities for the monitoring of the implementation of approximation of legislation and law enforcement actions to be taken 226 . In the light of the obligations undertaken in the SAA, considering the strategic objective to be an EU Member Country and the responsibility included in this objective and also the social, economic and legislative reforms, which are under the implementation process, Albania has approved a strategic approach which will regulate the undertaken obligations, having into consideration its national interests and capacities 227 . The European Integration process is regulated in the implementation instrument, as is the National Plan for European Integration 228 . This document addresses mainly the process of the approximation of the Albanian legislation with the acquis, as an obligation, which derives from the SAA, monitoring and improving the legislative and institutional framework. This document defines the priorities, and the respective time frames for their implementation; short-term, mid-term and long-term. The process of the approximation of the public procurement legislation with the relevant EU Directives and the respective time frame is clearly reflected in this document 229 . 2.4.2 New law on public procurement and its approximation process Considering the engagement related to public procurement in SAA, Albania drafted in 2006 a project of law approximating Directive 2004/18/EC “On coordination of public procurement procedures for works, goods and services”. The new law on public procurement, oriented this time by the respective EU legislation, changed totally the public procurement system in Albania. Law no. 9643/2006 “On public procurement” was approved by the Albanian Parliament on 20 November 2006 and entered in force on 01 January 2007, thus abrogating the previous law no. 7971/1995, and all secondary legislation. The new law was followed by DCM no. 1, dated 10 January 2007 “Rules of public procurement”. Guidelines and Tender Standard Documents were prepared, based on these two pieces of legislation. This new legal framework brought about essential changes in the sector. First of all, it is worth mentioning that the new law provided for a more detailed and clearer process of public procurement, starting with the issuing of the procurement order and closing the cycle with the signing of the contract, including also several provisions related to the contract 226 See SAA document at: http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf 227 See the Document of the National Plan for the European Integration, June 2014, available at http://www.integrimi.gov.al/al/dokumenta/dokumente-strategjike/plani-kombetar-per integrimin-evropian 228 Before 2013 this instrument was called National Plan for the Implementation of the Stabilization and Association Agreement. See PKZMSA 2007-2012, prepared by the Ministry of Integration, published by albPAPER, 2007. 229 See PKZMSA 2007-2012, prepared by the Ministry of Integration, published by albPAPER, 2007, pg. 35, 36, 38 and 39 and the Document of the National Plan for the European Integration, June 2014, available at http://www.integrimi.gov.al/al/dokumenta/dokumente-strategjike/plani-kombetar-per integrimin- evropian, pg. 156-163. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 73 execution 230 . The new law lays out very clearly the principle of equal treatment, the principle of nondiscrimination, the principle of transparency, the value for money principle and the principle of legal protection of economic operators’ interests. 231 Exclusion of direct procurement from the list of procedures, through which a public contract could be awarded, made one of the significant changes in the new law. In addition, the new law introduced the concept of the “abnormally low bid”. All these issues provided for the first time in the new law reflected the provisions of the respective Directive 2004/18/EC. Although the new legal framework marked an important step towards the approximation of the public procurement legislation with the acquis communautaire, approximation at this stage was still only partial 232 . This partial approximation is related to several factors, which may be grouped in (i) political, (ii) legal and (iii) economic factors. (i) The approval of a law is a political decision-making; hence the content of the law is strongly impacted by politics. Such was the case of the establishment of the Procurement Ombudsman. This institution was given by law competencies, which were overlapping with competencies of the Public Procurement Agency by that time (monitoring competencies and review of complains) 233 and at the same time it was an institution, which fell out of the model provided for by the EU Directive. (ii) The legal factors impacted approximation for two reasons: firstly the implementation of certain articles of the Directive required the existence of other legislation in Albania (such as the use of electronic signatures) 234 and secondly not all provisions of the Directive were obligatory for the Member States (such as use of competitive dialogue procedure) 235 , while some of the provisions were strictly addressed to Member States (such as the obligation for publication of the public procurement contract notice in the Official Journal of the EU. (iii) Another group of Directive’s provisions were not 230 Law 7971/1995 “On public procurement”, was composed by 48 articles, meanwhile the new law 9643/2006 “On public procurement”, was composed by 78 articles. 231 See Albania 2007 Progress Report of European Commission, point 4.1.6 “Public Procurement”. 232 According to Albania 2007 Progress Report of European Commission, point 4.1.6 Public Procurement, “There has been some progress in the area of public procurement. 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. … However, further alignment is required in all areas of public procurement (public contracts, utilities, concessions). The PPA also remains responsible for decisions on complaints, therefore the impartiality of review procedures cannot be guaranteed. The administrative capacity of all those dealing with public procurement needs to be strengthened to ensure that Albania can properly implement the new public procurement legislation properly…”. 233 See Albania 2008 Progress Report of European Commission, point 4.1.6 “Public Procurement”, par.3. http://ec.europa.eu/enlargement/pdf/press_corner/keydocuments/reports_nov_2008/albania_progress_ report_en.pdf . 234 At the time of approval, Law no. 9643/2006 “On public procurement” included several provisions regulating electronic procurement, but a law on electronic signature was still missing in Albania, making such provisions not applicable. 235 Procurement procedures foreseen by Directive 2004/18/EC, but not included in the Albanian Law no. 9643/2006 “On public procurement”. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 74 considered reasonable to be implemented because Albania was not in the favorable economical conditions to do so (such as the case of “framework agreement” 236 ). Providing a partial approximation with the respective EU Directive, during the period 2007-2014 the legal framework passed through several changes and improvements 237 , aiming to further approximation. After observing application of the new legal framework on public procurement, on September 2007, the Parliament of Albania approved law no. 9800/2007. The law consisted in changing the conditions for using the procurement procedure of negotiation without prior publication of contract notice, thus approximating in full article 33 of the Albanian public procurement law with article 31 of Directive 2004/18/EC. On December 2007, the Parliament of Albania approved some amendments to Law no. 9643/2006 “On public procurement”, as amended. This Law No. 9855 of 26 December 2007, introduced new regulations on the procurement of electrical energy and of hydrocarbons. It introduced as well ex novo, the concept of “Framework agreement”, thus creating the general framework for entering into special contracts for goods to be procured along a given timeframe. Despite amendments introduced up to 2008, there were still some important issues which were not aligned with the acquis. Among these the most important were related to the review system; the specific regulations for procurement in the utility sector; and a detailed and clear provision for framework agreements 238 . That is why another amendment of Law 9463/2006 was necessary. Such an amendment was done by approval of Law no. 10170 of 22 October 2009. This law established for the first time a special instance for reviewing appeals in public procurement, entitled Public Procurement Commission, approximating the legislation to the respective EU Directive 239 . The newly established institution took from the Public Procurement Agency the competence of reviewing appeals. For the first time, a special chapter on procurement in the utility sectors was also introduced, approximating the legislation with Directive 2004/17/EC “On coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors” as well. A special article on framework agreement has been introduced. All the above listed amendments were another step forward to approximation with the respective EU Directives. What is worth mentioning is the fact that the public procurement law is being approximated not only with the Directive 236 A tool provided by the Directive 2004/18/EC, to procure often needs or needs without all conditions known. This tool was not provided by the Albanian legislation of the time we are referring to, with the argument that the usage of this tool might be abusive and leads to the monopolization of the market for the given items. 237 Law No 9643, dated 20.11.2006 ‘On Public Procurement” has been amended with laws No. 9800, dated 10.09.2007, No. 9855, dated 26.12.2007, No. 10170, dated 22.10.2009, Ne. 10309, dated 22.07.2010, No. 22/2012, No. 131/2012 and No. 182/2014. 238 See Albania 2009 Progress Report of European Commission, point 4.1.6 “Public Procurement”, par. 2, available at http://ec.europa.eu/enlargement/pdf/key_documents/2009/al_rapport_2009_en.pdf . 239 In the acquis, the reviewing process is regulated by the Public Sector Remedies Directive 89/665/EEC, as amended by Directive 2007/66/EC. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 75 regulating the procurement in the classic sectors (as it has been happening from 2006 to 2009), but also with the other two respective Directives: the utilities sector Directive and the remedies Directive. Laws No. 10309 of 22 July 2010 and No. 22/2012 brought some changes, which were not significant in terms of approximation to the acquis. The first reformulated competences of the Public Procurement Agency on monitoring and administrative investigation, while the second was quite technical, removing Public Procurement Commission from the dependency of the Council of Ministers and putting it under the Prime Minister 240 . By the end of 2011, the PPL was still considered as partially approximated to the acquis and in some aspects presenting serious problems 241 . In this context, Law 131/2012 introduced the latest changes to Law no. 9643/2006. Changes consist in both reformulation of the existing articles and technical changes of a more essential character to these articles. The aim of the last changes to the public procurement legal framework was to facilitate the implementation of the procurement procedures, and at the same time to further approximate to the EU directives. One of the novelties of the public procurement law is the authorization to continue a public procurement procedure even in the cases when only a single valid offer has resulted from the evaluation process. Prior to these law changes, to continue the procurement procedure the qualification of at least two valid offers was required. Such change aligns the law to the directive. Another novelty is the change of the institutional setup. The Procurement Advocate has been abolished as the practice showed that there was an overlap of tasks between it and the Public Procurement Commission regarding complaints review and between it and the Public Procurement Agency regarding the monitoring 242 . Further on, aiming at a greater efficiency of public procurement, the new provisions shall allow implementation of procurement procedures without having available the funds. However, such funds should be available to the Contracting Authority at the moment the contract is signed; otherwise signing of the contract is not allowed. PPA has regained the power to monitor public procurement procedures, but only after such procedures have been concluded with the signing of a contract. Such change has been introduced as to fulfill the recommendations of international organizations and the 240 Such change was necessary as according to the functioning organic law, the Council of Ministers does not have any subordinated institution. 241 According to the Albania 2011 Progress Report of European Commission, point 4.5, Chapter 5 “Public Procurement”, last par. “The legislative framework on public procurement and concessions is not fully in line with the acquis. Efforts are required with regard to strengthening the institutional framework and clearly defining and delimiting the competencies of all public procurement institutions in order to avoid the overlapping of tasks and to remove the remaining loopholes in the system. No comprehensive system of administrative monitoring and control of the application of public procurement rules and contracts has so far been introduced…”. 242 See foot note 241 above. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 76 Progress Reports for further approximation of the Albanian legislation to the EU Directive. The article, stating “the criteria for determining the winner” 243 has been reformulated, as to align it with Directive 2004/18/EC. Reformulation does not state evaluation on monetary terms as an evaluation method. Instead it determines more clearly the criteria of the lowest price and of the most economically favorable offer. More details related to the evaluation according to the most economically favorable offer evaluation are set in the Albanian public procurement rules, approved by the secondary legislation. Another change refers to complaints about the tender documents and the deadlines to be respected for such complaints. The deadlines for submitting a complaint to the Public Procurement Commission have been changed as to approximate the law with Directive 2007/66/EC. The described changes of the law have been followed by changes in the secondary legislation, DCM no. 1 of 10 January 2007 “Rules on public procurement” 244 . Another amendment of the PPL has been approved by the end of 2014 245 . The aim of the amendments and additions introduced by this law is above all to further increase the efficiency and effectiveness of public procurement procedures, encouragement of local and foreign economic operators to participate in public procurement procedures and at the same time to further approximate to the corresponding EU Directives. Changes consist in both reformulation of the existing articles and technical changes of a more essential character to these articles. One of the novelties of the public procurement law is the exclusion of employment contracts from the scope of this law. This provision comes in line with Directive 2014/24/EU, which does provide for the first time such exclusion 246 . Another novelty is the abolition of the mandatory requirement of the bid security, bringing the law closer to the Directive provisions in this regard, as the latter do not provide a requirement for bid security at all. The latest changes of the law have been followed by changes in the secondary legislation, which was totally reviewed and reorganized in articles. As such a new Decision of the Council of Ministers, providing rules on public procurement, has been approved 247 and the former DCM no. 1 of 10 January 2007 “Rules on public procurement” has been abolished. 243 Article 55, par. 1 of PPL no. 9643/2006 244 DCM no. 1 of 10 January 2007 “Rules of public procurement” amended DCM No. 153 of 22 March 2007, No. 135 of 03 February 2008, No. 392 of 08 April 2008, No. 822 of 18 June 2008, No. 495 of 15 May 2009, No. 917 of 29 July 2009, No. 398 of 26 May 2010, No. 32 of 23 January 2013 and No. 547 of 13 June 2013. 245 Latest amendments of PPL are approved by Law no. 182/2014. 246 See article 10/g of the Directive 2014/24/EU. 247 Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on public procurement”. 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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