"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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- 2015 XVII Chapter V is titled “The approximation of the Albanian procurement legislation with
- IV Relevance of the study
- 2015 XXII Abbreviations CA
2015 XVI known to the private sector, a contracting authority should describe them by using technical specifications. Once the needs are identified, the contracting authority should further describe the requirement that economic operators should meet, in order to be qualified to perform the contract at issue. After deciding on the characteristics of needs and qualification criteria, the contracting authority should launch a procurement procedure and run the selection process. To complete this process and award the contract, another necessary decision to be made by the contracting authority is deciding on the awarding criteria to be used. All this process should be based on procurement principles. As one of the most important principles, the transparency principle is concerted into concrete requirements, such as those on advertising the relevant notices of a procurement procedure. These entire concepts, which reflect the activities prior to the conclusion of the contract, are thoroughly analyzed in this chapter. The analysis of such concepts is based on the CJEU case law. Chapter IV is titled “Awarding procedures and procurement tools according to the Albanian system; similarities and differences with the corresponding EU legislation” This chapter analyzes the types of procedures and tools of public procurement envisaged by each legislation, aiming firstly at assessing the situation of each of the legislations and secondly assessing the impact of the EU legislation in the Albanian procurement legislation, in this regard. Discussions are made on the real possibility of the application of all procurement procedures foreseen by the corresponding Directives in the domestic legislation. The so called ‘competition stage’ is one of the three stages of the procurement process and refers to an administrative competition process, following a certain procedure, aiming at the awarding of the contract to the best offers. The regulatory rules on public procurement generally focus on the competition procedures, since it is in this phase that legal rules and other regulatory measures become important tools of policy. As such, the procurement rules set out the processes to be followed by a contracting authority when using each of these competitive procedures, which differ according to the procedure. Except for the procurement procedures, the procurement rules also include provisions covering procurement tools that a contracting authority may choose to use in conjunction with the competitive procedures, where permissible. These are framework agreements, electronic auctions and dynamic purchasing systems. Whenever a contracting authority wishes to award a contract without competition, using what is known as the ‘negotiated procedure without prior publication of a contract notice’, then it can only do so if specific conditions are met. All these awarding procedures and procurement tools are discussed in details, in this Chapter. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XVII Chapter V is titled “The approximation of the Albanian procurement legislation with the corresponding EU legislation; the right approach of the concept”. This chapter provides for a description of the commitments of the Albanian government in the field of public procurement, in the frame of the Stabilization and Association Agreement. It analyzes if such commitments have been achieved in compliance with the apposite plan, in terms of content and time. Using public procurement process to purchase goods, services, or works for the Albanian Government Bodies was possible only after 1990, when the first steps to a free and open market were taken. Given the commitments taken with the purpose of the entry into the European Union, Albania has begun the process of the approximation of the procurement legislation with corresponding EU Directives. The key issue, being discussed through this Chapter is whether it is possible to realize a hundred percent approximation while Albania is not yet an EU member, having into consideration that the purpose of the Procurement Directives is to create an internal market for public contracts among Member States themselves. Aiming at providing valid scenarios for the near future, in the context of a new Directive for the procurement, for which Member States are given a transitory period for complying with (up to 2016), this chapter analyses the provisions of this new directive, comparing them also with the PPL changes and discussing the possibility of a full implementation of these provisions in the political, economic, and social context of Albania. Chapter VI “Conclusions and recommendations” Finally, this work is closed with the conclusions and the recommendations. This chapter provides a summary of the analyses and the conclusions of the study. Recommendations are provided concerning the process of approximation as well as the measures to be taken for assuring an approximated and efficient procurement system. III Methodology The methodology used for this work consists in a combination of the descriptive, comparative and analitical methodologies of the topic. Combination of these methods 2 has been deemed as necessary for achieving the expected outcome of this study. Further on, combining these methods with my personal knowledge and expertise in the field, at 2 For various aspects on European legal method see U. Neergaard, R. Nielsen, L. Roseberry (eds.) “European Legal Method-Paradoxes and Revitalisation”, DJØF Publishing, Copenhagen 2010. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XVIII practical and academic level, have facilitated the carrying out of the analysis and the adoption of a critical position concerning the issues raised for discussion in this work. To be coherent with all possible readers of this study, I will initially provide a description and definition of the basic concepts and elements of a public procurement process, of the objectives aimed at being achieved through such process as well as the factors that shape it. Further on, through the descriptive method, a history of the public procurement system in Albania will be provided, from the start and up to the current stage. In the same fashion a description of the EU public procurement system will be provided as well. Then, the commitments of Albania in the frame of the Stabilization and Association Agreement in the field of public procurement will follow. After the description of the above mentioned facts, through the comparative and analitical method, I will compare the Albanian legislation with the corresponding EU legislation. Afterwards I will continue with a totally analytical and critical method on the level of approximation of the Albanian legislation in the field with the one of the European Union; the fully approximated articles and those not yet approximated; is this approximated legislation applicable and whether a full approximation of the Albanian legislation with the EU legislation is neccessary and feasible, as required by the SAA. Analysis and discussions will be carried out based mainly in the respective regulative frame as well as on the position of the CJEU and the literature (mainly foreign), on certain issues. In function of a correct analysis of the situation, data from different studies carried out by different subjects, mainly non-governmental organizations, will be used. The new EU Directive will be also analyzed. To this regard the novelties introduced by this Directive and the possibility to adopt such novelties in the internal Albanian legislation will be analyzed. The analysis aims at evidentiating the differences of contexts, in which the legal provisions are meant to be implemented, with the purpose of coming to the conclusion of what should be changed by both parties as to come to a meeting point. As I previously mentioned, during my research for this study, I have paid particular attention to formal discussions and official meetings with representatives of the European Union, where they have expressed their position towards the Albanian public procurement system, in the light of the obligation for approximation with the corresponding EU Directies, as well as their expectations for this process. On the other hand, thanks to my job position, I have had the opportunity to confront such official positioning with opinions and positions of other homologues from other countries, EU Member and non Member States, and of course from colleagues in different institutions in Albania, from different institutions, who in their everyday work face problems in the implementation of the public procurement legislation. Another positioning towards the public procurement process, I have had the opportunity to share with representatives of Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XIX the judiciary system, during my lecturing in the School of Magistrates as well as during the training sessions with judges, concerning issues in this field. All these point of views, from various angles and levels, towards the procurement process, have helped me to apply the analytical method, mainly for finding out the main factors that impact the procurement system in Albania. Combination of the comparative and analytical methods will be also applied for drawing the conclusions of this study, which are the source for the recommendations provided with the purpose of helping in establishing an efficient process of approximation of the public procurement legislation. The study will be based on the consultation of primary and secondary legislation of the European Union; of the national and international organizations reports in the procurement field; commentaries of european and national codes and legal acts; recommendations and instructions of the European Commission; internal legislation of public procurement; works presented in national and international Scientific Conferences; articles published in national and international science magazines; foreign science texts; etc. An important part of the process has been the consultation of legal literature as well as with the many cases of the CJEU 3 . In addition to the above mentioned sources, discussion, comments, debates with scholars, counterparts and colleagues from EU Member States and Albania, concerning different issues within the scope of this study have helped me a lot in my work with the study. As well the research conducted in the rich library of the University of Turin has helped me to expand the field of science research. Last, but not least, participation in national and international Scientific Conferences, technical roundtables with procurement experts have been very important to understand the issues of the procurement process and the comparison between the national legislation and the EU Directives, and the impact of these last. After consultation of the selected literature follows the second phase of the research process, which consists in the analytical study of the selected literature. The analysis will be based mainly in: 1. Albanian public procurement legal framework; 2. Treaty on the Functioning of the European Union; 3. EU Public Sector Directives in the field of public procurement, including Directive 2004/18 (current Directive) and Directive 2014/24 (new Directive); 4. Case law of the CJEU 4 ; 5. Comparisons and possible approaches of the national legislation with the EU countries and the acquis in the field of pubic procurement; 3 Court of Justice of the European Union (CJEU) is referred in this study also with its previous name European Court of Justice (ECJ). 4 CJEU case law used in this study has been accessed on-line at http://curia.europa.eu. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XX 6. Statistics, as illustration of the provided arguments; 7. Data from the websites of the Albanian Public Procurement Agency, Albanian Ministry for European Integration, of various national and foreign organizations, dealing with public procurement as well as of EU. IV Relevance of the study This study has a special relevance as it is the first of its kind in Albania. This work deals for the first time with concepts of public procurement, associated with interpretation and analysis. In addition, this study analizes for the first time a new EU Directive, taking a position towards the possibility for the implementation of some provisions in the actual context of Albania. And last but not least, this study engages in analyzing and drawing conclusions in relation to a process, which has been up to now taken for granted, conducted without proper analysis regarding its feasibility, advantages and disadvantages, risking to transform it into a formal process, the negative effects of which might appear in a not very far future. Beside to the academic community, this study is also addressed to: Domestic state institutions, which deal with public procurement issues and mostly to those institutions engaged in the approximation process of this field, such as the Public Procurement Agency and the Ministry for European Integration; Foreign institutions present in the country or groups of experts involved in the assessment or improvement of public procurement regulation in Albania; Domestic or foreign organizations, which offer public procurement trainings for public procurement officials and economic operators; Officials engaged in implementation of public procurement procedures in state institutions; Representatives of private entrepreneurs, which participate as bidders in procurement procedures; Faculties and other institutions engaged in education; All those individuals interested in understanding more in depth the public procurement system in Albania, regulation of this system in the EU and the level and the process of approximation of the Albanian legislation with the EU legislation. V Review of the literature of the field The used literature for this scientific work includes primary and secondary sources. Considering that the public procurement system in Albania is relatively new, apart for sporadic studies in specific topics conducted mainly from non-governmental organisations (which has been taken into consideration in this study), there is not yet any publication and literature covering public procurement, in the country. Regarding the Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XXI data on the Albanian public procurement system, I have used the Albanian public procurement legislation from its beginnings to the legislation currently in force, the Stabilization and Association Agreement, the National Plan for Implementation of the Stabilization and Association Agreement 2007-2012, the National Plan for European Integration 2015-2020, the Annual Analysis of the Public Procurement Agency, reports of international institutions on the public procurement system in Albania as well as European Commission Annual Reports for Albania. Meanwhile, as far as the public procurement system in the European Union is concerned, I have used as basic material the EU public procurement directives. However, to have a broader idea on the EU legislation in general, the part taken by the Directives in this legislation, the obligations brough about by these Directives, and the EU public procurement, I have used a part of the literature found in this field. This literature comprises European Communities treaties, publication on EU legislation, Guides on public procurements in the European Union, periodic magazines of public procurement accessible online in the scientific research databases. Another very important source for this study were the cases of the CJEU, dealing with public procurement. These cases were accessed online in the respective EU database. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 XXII Abbreviations CA Contracting Authority CJEU Court of Justice of the European Union DCM Decision of the Council of Ministers Directive 2004/18/EC Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts Directive 2014/24/EU Directive 2014/24/EU of the Eeuropean Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC EU European Union EC European Commission ECJ European Court of Justice EO Economic Operator EPS Electronic procurement system GPA Government Procurement Agreement LCC Life-cycle costing MEAT Most economically advantageous tender NPEI National Plan for European Integration OJEU Official Journal of the European Union PIN Prior Information Notice PPA Public Procurement Agency PPL Public Procurement Law SAA Stabilization and Association Agreement STD Standard Tender Documents SMEs Small and medium enterprises TFEU Treaty on the Functioning of the European Union UNCITRAL United Nations Commission on International Trade Law WTO World Trade Organization Download 5.49 Kb. 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