"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
Download 5.49 Kb. Pdf ko'rish
|
- Bu sahifa navigatsiya:
- 4.1.1.c Negotiated procedure with prior publication of a notice
- 2015 176 concerns works, supplies or services and whereby the contracting authority
2015 173 and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. In any case, in the restricted procedure the minimum shall be five. The contracting authorities shall invite a number of candidates at least equal to the minimum number set in advance. Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number, the contracting authority may continue the procedure by inviting the candidate(s) with the required capabilities. In the context of this same procedure, the contracting authority may not include other economic operators, who did not request to participate, or candidates, who do not have the required capabilities 653 . Even though PPL does foresee that it would be economically more effective for the contracting authority to examine the capacities and the qualifications of the interested economic operators first and then, to invite those operators who possess specific minimal qualifications to submit their tenders, it does not profit from it, because it does not put it in the same context as Directive. The aim of the Directive with such a provision is to pre- qualify a smaller number of potential tenderers first, in order to make the process more manageable and less costly for both itself and the tenderers, while the PPL does not allow for such opportunity. The restricted procedure is a two-stage process. The contracting authority advertises the contract opportunity 654 , and any interested economic operator may submit his request to participate at the qualification phase. The economic operators first submit the selection stage (pre-qualification) information, which is used by the contracting authority to establish whether the economic operators are qualified to perform the contract 655 and to select the economic operators that are to be invited to tender 656 . The contracting authority issues the full invitation to tender documents, including the specification and contract, to the economic operators that it has selected or shortlisted 657 . The submission of the request for participation at the first stage and the submission of the offer at the second stage 653 See article 44/3 of the Directive 2004/18/EC. The same is provided by the Directive 2014/24/EU as well (see article 65/ 1 and 2). 654 According to article 31/2 of the PPL, in restricted procedures, contracting authority shall publish a notice, which must contain the following: a) a description of the object of the contract to be awarded; b) an indication of the selection criteria; c) an invitation to express interest in participating to the awarding procedure. The same requirements are foreseen by Directives as well (See respectively Annex VII A of Directive 2004/18/EC and article 28/1 of Directive 2014/24/EU. PPL and Directive 2014/24/EU have specific articles providing basic requirements for the restricted procedure, while Directive 2004/18/EC, does not provide for such a specific article. 655 During the prequalification stage, no award criteria should be taken into account. See for example case C-362/90 Commission v Italian Republic [1992] ECR I-2353. 656 See article 31/3 of PPL. As discussed above, according to Directive (s) contracting authorities are permitted to limit the number of economic operators that it invites to tender and to draw up a shortlist of economic operators. This means that not all of the economic operators that qualify have to be invited to tender. According to the PPL, on the other hand, all qualified economic operators in the first stage, should be invited to submit an offer at the second stage. 657 See article 31/ 4 and 40 of PPL and respectively article 40 of Directive 2004/18/EC and 28/2 and 54 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 174 should be done within the time limits set from the contracting authority 658 . Tenders can be evaluated on the basis of either the lowest price or the most economically advantageous tender. Even in this procedure, as in the open one, no negotiations are permitted with economic operators. As discussed above, the restricted procedure under the PPL is not ‘understood’ and applied as the restricted procedure under the Directive(s). As a matter of fact, the provision of the restricted procedure in the PPL seems as a mix between the relevant provisions of the UNCITRAL Model Law 659 and Directive 2004/18. According to the UNCITRAL Model Law 660 , the procuring entity may engage in procurement by means of restricted tendering when: a) the subject matter of the procurement, by reason of its 658 According to the PPL, the time limits for bid submission in a restricted procedure depend on the threshold (if it is international or national procedure). As such, in case of restricted procedures above the high value thresholds, the time-limit for submitting the request to participate shall be not less than 20 days from the date, when the contract notice was published on the Public Procurement Agency website, while the time-limit for the receipt of tenders shall be not less than 20 days from the date, when the invitation to tender was sent to the candidates. In case of restricted procedures between the high and the low value thresholds, the time-limit for submitting the request to participate shall be not less than 15 days from the date, when the contract notice was published on the Public Procurement Agency website, while the time-limit for the receipt of tenders shall be not less than 15 days from the date, when the invitation to tender was sent to the candidates (see article 43/3 and 6 of PPL). Time limits provided by PPL for this procedure are shorter than those provided by Directive 2004/18/EC for the same procedure. According to the said Directive in case of the restricted procedure, the minimum time limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent; and the minimum time limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent (see article 38/3 of the Directive). Still according to PPL, in case notices are prepared and published by electronic means, (and this is always the case) in compliance with the format and procedure for the transmission that are provided in the PP- rules, the time limits for the receipt of request to participate and receipt of tenders, may be reduced by five days for the restricted procedure. While, according to the Directive 2004/18/EC when contracting authorities have published a prior information notice, the minimum time limit for the receipt of tenders (not for receipt of request to participate) may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days. Considering these provisions, it results that time limits applied under PPL for the restricted procedure, are as the half of the respective time limits, applied by the Directive at issue, even in cases the PIN is applied. Directive 2014/24/EU, on the other hand, applies shorter time limits than Directive 2004/18/EC, (but not shorter than PPL), providing that ‘the minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice or, where a prior information notice is used as a means of calling for competition, the invitation to confirm interest was sent and the minimum time limit for the receipt of tenders shall be 30 days from the date on which the invitation to tender was sent. Where contracting authorities have published a prior information notice, which was not itself used as a means of calling for competition, the minimum time limit for the receipt of tenders as laid down in the second subparagraph of paragraph 2 of this Article may be shortened to 10 days. Also (if the PIN’ option is not used, the contracting authority may reduce by five days the time limit for receipt of tenders, where it accepts that tenders may be submitted by electronic means in accordance with the relevant provisions (see article 28 of Directive 2014/24/EU). In all situations, prescribed above, the time-limits provided by PPL are shorter than the ones provided by both Directives. 659 The first law on public procurement in Albania has been prepared under the influence of the UNCITRAL Model Law (see Chapter III above). 660 See article 29/1 of the UNCITRAL Model Law. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 175 highly complex or specialized nature, is available only from a limited number of suppliers or contractors; or b) the time and cost required to examine and evaluate a large number of tenders would be disproportionate to the value of the subject matter of the procurement. This second option refers to cases where the value is so low that using an open procedure would be more costly than the benefit from the open competition. This provision of the Model law gives to the contracting authority the possibility to solicit tenders (in case (a) from all known economic operators (for the object matter), or to simply select a given number of economic operators, aiming at a non-costly process (in case (b). Directive 2004/18, on the other hand, allows the contracting authority to restrict the number of bidders, but through selective qualification criteria. Thus, the restriction is not based on the previously known identity of the bidders but a process, which takes into account the qualifications of the bidders, known as a pre-qualification procedure. The pre-qualification procedure under the Directive is used to identify those tenderers, who are most likely to be able to submit responsive and adequate tenders based on their qualifications, reducing in this way the time and cost of the contracting authority in assessing potentially non-compliant tenders, on one hand and reducing the cost of preparing the entire set of documentation for those tenderers, who do not have a chance of winning. Analyzing all this, it is clear that the situations when a restricted procedure is used under the Model Law and situations when such a procedure is used under the Directive, are rather contrary to each other; the model law stimulates the use of this procedure when there are not too many potential bidders on the market, while Directive when there are too many potential bidders on the market. The PPL stays in the middle; it provides for the conditions of Model Law on one hand, but it allows everyone to participate, on the other hand, and differently from both regulations at issue, it does not restrict the number of bidders neither in the first stage (by sending invitation only to the potential tenders, as Model Law does), nor in the second stage, (by deciding a maximum number of bidders, who will pass in the second stage, as Directive does). The approach of the PPL at this stage, by inviting to submit a bid all those bidders who meet the minimum qualification criteria, is similar to the World Bank approach 661 . All these different approaches on restricted procedure, mixed in one provision, make the position of the PPL very ambiguous. This ambiguity is reflected in the very low number of use of the restricted procedure from the contracting authorities in Albania 662 . 4.1.1.c Negotiated procedure with prior publication of a notice The negotiated procedure with prior publication of a notice is a ‘two-stage’ competitive procedure that can be used for some works, supplies and services contracts, subject to fulfilling narrowly prescribed conditions that vary depending on whether the contract 661 See section 3.2 of the World Bank Guideline. 662 According to the Annual Reports of PPA, the number of the restricted procedure in years 2011, 2012, 2013 and 2014 have been respectively, 1, 0, 3 and 6 (see Annual Reports of PPA, available at www.app.gov.al ). Impact of European Union public procurement legislation on the Albanian public procurement system 2015 176 concerns works, supplies or services and whereby the contracting authority consult the economic operators of their choice and negotiate the contract terms with one or more of these 663 . According to the PPL 664 , a contracting authority may use the negotiated procedure with prior publication of the contract notice in the following cases: a) in the event of irregular tenders or the submission of tenders, which are unacceptable under national legal provisions, in response to two consecutive open or restricted procedures, insofar as no substantial alteration is included in the contract, as provided in the PP rules 665 ; b) in exceptional cases, when the nature of works, supplies or services or the risks attaching thereto do not permit prior overall pricing 666 , specially: (i) in case of service contracts, particularly intellectual services such as services involving the design of works, insofar as the nature of the services cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures 667 ; (ii) in case of works contracts, for works which are performed solely for the purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs. Conditions of using the negotiated procedure with prior publication of the notice as provided by PPL, generally speaking, are the same as those provided by Directive 2004/18 668 , but still there is a difference in the approach followed by PPL. Thus, PPL put the cases ‘when the nature of the services cannot be established with sufficient precision’ 663 See article 3/19 of the PPL and article 1/11 (d) of the Directive 2004/18/EC. Both, PPL and Directive 2004/18/EC, give a definition of a ‘negotiated procedure’, on their relevant definitions’ articles. Directive 2014/24/EU includes a “new” public procurement procedure (see article 29) called the competitive procedure with negotiation. In reality, this is not an entirely new procedure but rather a new name for the negotiated procedure with prior notice or at least of one of the ways in which such could be undertaken. See also P. Telles and L. R. A. Butler” Public Procurement Award Procedures in Directive 2014/24/EU”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg.153. 664 See article 32/1 of PPL. 665 The contracting authority must verify if any tenders are irregular or unacceptable. If tenders are found to be irregular or unacceptable because of errors made in the tender documents, or are caused by action of the contracting authority and/or if substantial alterations need to be made to the terms of the contract or to the tender documents, a new open or restricted procedure must be organized. The contracting authority shall take necessary measures to correct actions that caused the failure of the procedure (see article 35/2 (a) of the Decision of CoM). 666 This might be the case for example when the repair of entire network services, integrated transport infrastructure, large IT project involving complex and structured financing is needed, where the extent of the work required would not become apparent until after it had started (see article 35/2 (b) of the Decision of CoM. 667 The nature of the service to be provided is such that specifications cannot be defined with sufficient precision (e.g. contracts for consultancy or financial services, complex IT projects or any other complex contracts of a similar magnitude in infrastructure or in rapid change technologies) (see article 35/2 (ç) of the Decision of CoM). 668 See article 30/1 of Directive 2004/18/EC. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 177 and ‘when works contracts are performed solely for the purposes of research, testing or development’ as subordinated cases under the ‘exceptional cases, when the nature of works, supplies or services or the risks attaching thereto do not permit prior overall pricing’ (option (b) above), while Directive does list all these cases as different situations, when a contracting authority may use the procedure at issue. Furthermore, PPL provides that when the value of the contract is lower than the low value thresholds, a contracting authority may use negotiated procedures with prior publication of a contract notice in any case, which they deem appropriate, provided that the procedure complies with the principles of equal treatment, proportionality and transparency 669 . This means that for low value contracts, there is not a need for justification when using the negotiated procedure with prior publication of a notice. However, despite this flexibility of the law, considering the specific nature of this procedure, contracting authorities, either in low value contracts, will choose this procedure only if they will be in conditions analyzed above, otherwise it is not worthy of using it, compared to an open procedure. Even in the case of using this procedure, the contracting authority advertises the contract opportunity, and the economic operators first submit pre-qualification and selection stage information, which is used by the contracting authority to establish whether the economic operators are qualified to perform the contract. The submission of the request for participation at the first stage should be done within the time limits set from the contracting authority 670 . After the deadline of submitting the request to participate, the contracting authority opens the procedure and selects the economic operators that are to be invited to tender 671 . As in the case of a ‘restricted procedure’ under the Directive 669 See article 32/2 of PPL. 670 According to the PPL, the time limits for submitting the request to participate in a negotiated procedure with prior publication of the notice, depends on the threshold (if it is international or national procedure). As such, in case of negotiated procedures above the high value thresholds, the time-limit for submitting the request to participate shall be not less than 20 days from the date, when the contract notice was published on the Public Procurement Agency website, In case of negotiated procedures between the high and the low value thresholds, the time-limit for submitting the request to participate shall be not less than 15 days from the date, when the contract notice was published on the Public Procurement Agency website, (see article 43/3 and 6 of PPL). Time limits provided by PPL for this procedure, are shorter than those provided by Directive 2004/18/EC for the same procedure. According to the said Directive in case of the negotiated procedure, the minimum time limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent; (see article 38/3 of the Directive). Still according to PPL, in case notices are prepared and published by electronic means, (and this is always the case) in compliance with the format and procedure for the transmission that are provided in the PP- rules, the time limits for the receipt of request to participate may be reduced by five days for the negotiated procedure (see article 43/8). While, according to the Directive 2004/18/EC, when notices are published by electronic means, the time limits for the receipt of request to participate may be reduced by five days for the negotiated procedure (see article 3/5). Considering these provisions, it results that time limits applied under PPL for the negotiated procedure, are as the half of the respective time limits, applied by the Directive at issue. 671 At this first stage, this procedure is very similar to the restricted procedure. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 178 provisions, in negotiated procedures with prior publication of a notice, the contracting authorities may limit the number of suitable candidates they will invite to tender, provided a sufficient number of suitable candidates is available. The contracting authorities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. In any case, in the negotiated procedure, the minimum shall be three 672 . PPL, in the same context as in the restricted procedure, does not limit the number of economic operators who will be invited in the second stage 673 . The contracting authority issues the invitation to negotiate only to the economic operators that it has shortlisted. It receives initial proposals and then enters into negotiation with the shortlisted tenderers in respect of those proposals, in order to adapt them to the requirements set out in the contract notice, the specifications and additional documents, if any, to seek out the best tender. During the negotiations, while dialogue is carried on with each candidate individually, the contracting authorities shall ensure equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner, which may give some tenderers an advantage over others. Contracting authorities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract notice or the specifications. The contract notice or the specifications shall indicate whether recourse has been made to this option 674 . Tenders can be evaluated on the basis of either lowest price or most economically advantageous tender. The negotiated procedures are open for negotiations with preselected tenderers. As the negotiations possibility leave space for private discussion between a contracting authority and tenderers, this type of procedure gives the impression that there is danger of abusive conduct of the contracting authorities to steer the award procedures in favor of a ‘preferred’ economic operator. Not only PPL, but also EU law is based on the fear of preferential treatment for domestic economic operators and discrimination against foreign ones in case of using negotiated procedures. Negotiated procedures are inherently more flexible, and as such they provide greater opportunities for preferential treatment – if not for outright corruption – for instance through selective distribution of information by the contracting authority to the benefit of one economic operator 675 . The negotiated procedure with prior publication of a notice, provided by PPL, is somehow similar to the restricted procedure, which, as analyzed above, is a two-stage procedure as well and may be used only under given circumstances. 672 See article 44/3 of the Directive 2004/18/EC. 673 According to PPL, in case of restricted procedures and negotiated procedures, contracting authorities may not limit the number of candidates to be invited to tender (see article 40/4 of the PPL). 674 See article 32/3, 4 and 5 of PPL and article 30/2, 3 and 4 of Directive 2004/18/EC. 675 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, © 2015 Kluwer Law International. Printed in the United Kingdom, April 2015, pg. 451. Impact of European Union public procurement legislation on the Albanian public procurement system Download 5.49 Kb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling