"impact of european union public procurement legislation on the albanian public procurement system" republika e shqip
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- Termination of contracts
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- Modification of contracts The new Directive introduces for the first time the concept of ‘modification of contracts during their term’ 979 . According to this new provision, there are two types of modifications of contracts: Modifications, which constitute a new contract and require a new procedure to award it; and Modifications without a need to conduct a new procurement procedure. The new directive defines the notion of substantial modifications, i.e. changes, which are considered to be a new contract for which it is necessary to conduct a new procurement procedure. By a substantial modification the directive implies: modification where it renders the contract or the framework agreement materially different in character from the one initially concluded. Further, the Directive provides for detailed rules on 976 See article 61/1 of PPL. 977 See article 75 of the Decision of Council of Ministers no. 914, dated 29.12.2014 “Rules on Public Procurement”. 978 Considering the fact that subcontracting, in accordance with the general PPL rule is without prejudice to the issue of liability of principal contractor with regard to the contracting authority for the contract as a whole (regardless of subcontracting he remains responsible for proper implementation of the contract as a whole (Article 61 (4) of PPL), these rules PPL and its secondary legislation are too strict. 979 See article 72 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 248 modification conditions and modalities. Article 72 ensures that the contracting authorities can adopt a flexible approach to a broad range of contract changes. Article 72(1) (d) on corporate restructuring operations and insolvency is a noteworthy example with a very flexible approach to changes after insolvency. Article 72(1) (a) also allows diligent contracting authorities a broad margin for changes through careful drafting of the contract terms. The regulation of changes caused by unforeseen circumstances is relatively flexible and clearly allows more scope for changes than the current regime. The provision on small-scale-modifications in Article 72(2) is also important and flexible in its approach 980 . As there are currently no provisions in the Albanian PPL dealing with the issue of modification of contracts during their term 981 , and considering the importance and the relevance of such rules, the implementation of those provisions into Albanian law will be more than necessary. However, their introduction into the PPL should be done in coherence with the approach followed for the procedural rules applied up to the conclusion of the contract, especially regarding the “flexibility” issue. - Termination of contracts The new directive obliges Member States to put in place provisions enabling the contracting authorities to terminate contracts during their terms, at least in the following situations 982 , where: a) The contract has been subject to a substantial modification, which would have required a new procurement procedure (see above); b) The contractor has, at the time of contract award, been in one of the situations referred to as mandatory grounds for exclusion and should therefore have been excluded from the procurement procedure; c) The contract should not have been awarded to the contractor in view of a serious infringement of the obligations under the Treaties and the directive that has been declared by the Court of Justice of the European Union in a procedure pursuant to Article 258 TFEU 983 . 980 See further S. Treumer “Regulation of Contract Changes in the New Public Procurement Directive”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg. 281-299. 981 Except for the possibility of amending the initial contract up to 20% of its value, using the negotiation procedure without prior publication of a notice. See the analysis done in Chapter IV, above. 982 See article 73 of Directive 2014/24/EU. 983 Article 258 of TFEU provides that ‘If the Commission considers that a Member State has failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union’. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 249 Same as in the case of contract modification, there are currently no provisions in the Albanian PPL dealing with the issue of termination of contracts. As such, the implementation of those provisions into Albanian law would require introducing provisions dealing with termination of contracts accordingly 984 . - Governance The new directive imposes certain obligations on the Member States concerning the effective and correct implementation of public procurement rules 985 . By no means new provisions impose on Member States specific solutions concerning establishment or functioning of specific administrative structures. The directive in its final version limits itself to stating that Member States “shall ensure that at least the tasks set out in the Article are performed by one or more authorities, bodies or structures.” Member States should also communicate to the Commission all authorities, bodies or structures competent for those tasks. Taking into account the institutional set up in Albania and especially the legal tasks of Public Procurement Agency 986 it seems that the current structures and institutions already perform practically all the functions and tasks required by the new directive (monitoring, advising, training, being a contact points) so no significant changes are necessary in the context of the national view. The other changes are related to the fact of being a Member State. - Variants According to the new Directive, contracting authorities not only may authorize the bidders to submit variants 987 but they may also require them to propose variants 988 . As PPL has actually implemented, the relevant provision of Directive 2004/18, should be changed accordingly to implement new provisions of the Directive 2014/24, enabling the contracting authorities not only to authorize, but also to require the submission of variants. - Technical specifications Differently from the Directive 2004/18, the Directive 2014/24, while providing for technical specifications, goes further with its prescription providing also that ‘characteristics required of a work, service or supply, may also refer to the specific 984 It should be noted that the third situation provided by the provision at issue, should not be implemented as such, but at least should be adjusted within the context of national legal system. 985 See articles 83-86 of Directive 2014/24/EU. 986 See article 13 of PPL. 987 The Directive 2004/18/EC provides only the situations where contracting authorities ‘may authorize tenderers to submit variants (see article 24). 988 See article 45 of Directive 2014/24/EU. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 250 process or method of production or provision of the requested works, supplies or services or to a specific process for another stage of its life cycle even where such factors do not form part of their material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives. The technical specifications may also specify whether the transfer of intellectual property rights will be required’ 989 . Implementation of those provisions will require changes in the provisions of PPL dealing with technical specifications used to describe the subject matter of public procurement. These changes should be considered in connection to the award criteria, especially in case of LCC application. - Conflict of interest The new directive requires Member States to ensure that contracting authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures 990 so as to avoid any distortion of competition and to ensure equal treatment of all economic operators 991 . According to the directive, the concept of the conflict of interest should at least cover any situation where staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest, which might be perceived to compromise their impartiality and independence in the context of the procurement procedure 992 . Even though such a provision was not provided by Directive 2004/18, the issues of conflict of interest are dealt already by the PPL in Article 26 and it seems that at least at the level of legislative provisions, no further intervention is needed 993 . - Electronic communication According to the new Directive, 54 months after entry into force Member States should ensure that all communication and information exchanged under the directive, in particular the electronic submission, are performed using electronic means of 989 See article 42/1 of Directive 2014/24/EU. 990 This requirement is confirmed by ECJ as well, that in the case C-538/13 “eViglio” has stated, inter alia, that the contracting authority is required to determine whether any conflicts of interest exist and to take appropriate measures in order to prevent and detect conflicts of interest and remedy them. See further case C-538/13 “eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos”, Judgment ECLI:EU:C:2015:166 . 991 See article 24/1 of Directive 2014/24/EU. 992 See article 24/2 of Directive 2014/24/EU. 993 The ‘anticipated’ provision of such article in PPL is explained with the context in which this law is applied, where the risk of such situation of conflicts of interests is potentially high. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 251 communication 994 . The tools and devices to be used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure 995 . However, the Directive provides also for exceptional situations, where contracting authorities are not obliged to require electronic means of communication in the submission process 996 As analyzed in Chapters III and IV above, in the public procurement system in Albania, according to the Decision of the Council of Ministers No. 918, dated 29.12.2014, all public procurement procedures are performed through the e-procurement system. 997 In this regard, public procurement legislation in Albania is not only in compliance but even more advanced than the respective requirements of the Directive 2014/24. This is a reflection of the fact that PPL is a national law, and a national law will be “shaped” also by the concrete context and environment where it is applied. - Electronic catalogues The New Directive introduces detailed rules on e-catalogues 998 . According to this directive, in the case where the use of electronic means of communication is required 999 , the contracting authorities may require tenders to be presented in the format of an electronic catalogue or to include an electronic catalogue. PPL does not provide rules for using electronic catalogues. Considering the fact that in Albania an electronic platform is used to perform procurement procedures, the implementation of the respective provisions of the Directive at issue, on an electronic catalogue, will be in accordance with the electronic solution already given by Albania. 5.1.3 Summary Having analyzed all provisions of the new Directive, which should be implemented in the PPL, and comparing at the same time with the relevant provisions of the existing Directive (2004/18), it is easily noticed that the new directive brings considerable novelties in the field. 994 See generally R. Bickerstaff “E-procurement under the new EU procurement Directives”, Public Procurement Law Review, 2014, 3, Sweet & Maxwell, London 2014, pg. 134-147. 995 See article 22 of Directive 2014/24/EU. 996 See article 22/1, para. 2 of Directive 2014/24/EU. 997 The application of the e-procurement system has been started in 2009, with DCoM no 45, dated 21.01.2009. From this rule the negotiation without prior publication of the notice and small value procurement were excluded. Furthermore, small value procurements were included in the e-procurement platform in January 2013, according to the DCoM No. 47, dated 23.01.2013. 998 See recital 55 and article 36 of Directive 2014/24/EU. 999 Member States may render the use of electronic catalogues mandatory for certain types of procurement. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 252 One of the main objectives of the revision of the EU public procurement regime including the new Public Procurement Directive 2014/24 has been simplification and so- called flexibilization of the regime 1000 . As main novelties of this Directive, which directly impact the procurement process, might be listed: - More freedom to public purchasers to negotiate (constraints on using the competitive negotiated procedure have been relaxed, so that this procedure is available for any requirements that go beyond “off - the - shelf” purchasing). The increased flexibility is ensured through the introduction of the new procedure “innovation partnership” and more importantly by a truly remarkable widening of the scope of the flexible tender procedures, the negotiated procedure and competitive dialogue. It is apparent that the contracting authorities after the implementation of the new Public Procurement Directive frequently will have access to the flexible tender procedures contrary to the current state of law 1001 . The new rules encourage and allow preliminary market consultation between buyers and suppliers, which should facilitate better specifications, better outcomes and shorter procurement times. Thus, it is supposed that more flexible procedures may help to deliver value for money in certain cases-although this is entirely dependent on the ability of contracting authorities to negotiate effectively 1002 ; - Possibility of assessing credentials of candidates and bidders through suppliers’ self- declarations, and where only the winning bidder should have to submit various certificates and documents to prove their status and also self-cleaning measures, for suppliers who have cleaned up their bad practices; - Poor performance under previous contracts is explicitly permitted as ground for exclusion of an economic operator; - The statutory minimum time limits by which suppliers have to respond to advertised procurements and submit tenders or requests have been reduced by about a third; - Improved rules on social and environmental aspects have been designed, making it clear that: Social aspects can now also be taken into account in certain circumstances (in addition to environmental aspects, which had previously been allowed), Contracting authorities can require certification/labels or other equivalent evidence of social/environmental characteristics, further facilitating procurement of contracts with social/environmental objectives, and refer to factors directly linked to the production process; 1000 See COM (2011)896 final, 2011/0438 (COD). Proposed procurement directive. Explanatory Memorandum section 1. However, one can argue that considering the volume and specific rules set by Directive 2014/24/EU, the regime is not simplified. See further S. Treumer “Evolution of the EU Public Procurement Regime: The New Public Procurement Directive”; François Lichère, Roberto Caranta and Steen Treumer (eds.) “Modernizing Public Procurement. The New Directive”; 1. Edition, Djøf Publishing, Copenhagen 2014, pg. 9-11. 1001 Ibid, pg. 13. 1002 See A. Semple ‘A practical guide to public procurement’, Oxford University Press, United Kindom, 2015, pg. xI. Impact of European Union public procurement legislation on the Albanian public procurement system 2015 253 - Electronic communication/e-procurement will become mandatory following 54 months after the directive’s entry into force; - Various safeguards from corruption are required such as: Specific safeguards against conflicts of interest where declarations are signed by procurement staff to confirm they have no outside interests with bidders etc.; Similar provision against illicit behavior by candidates and tenderers, such as attempts to improperly influence the decision-making process or collusion, Safeguards against undue preference in favor of participants, who have advised the contracting authority or been involved in the preparation of the procedure 1003 . - Contracting authorities are encouraged to break contracts into lots to facilitate SME participation, but there is discretion not to do so where appropriate. Except for the above mentioned new rules, generally speaking, the Directive 2014/24/EU provide for mostly mandatory rules that have to be implemented by Member States. Many provisions that were optional under 2004 directives became mandatory in accordance with 2014 directives. This new approach will change the position of PPL, toward the Directive provisions. However, it should be noted that interestingly some of the new rules introduced by the new Directive come in the same line with some of the existing rules as provided by PPL, such as for example, using as ground for exclusion of economic operators the poor performance under previous contracts; mandatory use of electronic means; various safeguards from corruption etc. On the other hand, the implementation of Directive provisions, as analyzed above, should be done considering also the environment and national context, where they will be implemented. The national context and environment should be considered especially for that type of provision which does suggest more flexibility. The increased flexibility might be misused by the contracting authorities to discriminate some tenderers and/or favor others. Another obvious disadvantage closely linked to the first mentioned is that the increased flexibility to some extent will scare off potential tenderers as they might fear that contracting authorities will take advantage of the increased lack of transparency by discriminating the tenderers. The same concern should be also about the possibility of technical dialogue prior to the start of the tender procedure. Such a dialogue can lead to a violation of the principle of equal treatment, and a tenderer that has been involved in technical dialogue may, or in some cases, shall be excluded as a consequence. This follows from the fact that the technical dialogue might have given these firms a clear advantage in the competition for the public contract as they may have obtained additional information concerning the contract in question and an advantage in time compared to the competitors. The technical dialogue also implies an apparent risk of distortion of competition as the firm can seek to influence/affect the elaboration of the tender specification and arrangement of the tender procedures to its own advantage 1004 . The 1003 See also R. Williams “Anti-corruption measures in the EU as they affect public procurement” Public Procurement Law Review, 2014, 4, Sweet & Maxwell, London 2014, pg. NA95-NA99. 1004 Ibid, pg.13. 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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