Annual progress report 2015 albanian contribution – input I september 2014 – may 2015 table of contents
Download 3.84 Mb.
|
- Navigate this page:
- CHAPTER 5: PUBLIC PROCUREMENT Institutional set up and legal alignment
- Alignment (i)
- Alignment (ii)
- CHAPTER 6: COMPANY LAW
During 2014, the value of transactions increased slightly, by 5.56% in annual terms, whereas the volume of transactions processed in AIPS was at the same levels with those in 2013. The ratio of the value of transactions processed in AIPS to the Gross Domestic Product increased as well. A significant increase in terms of volume was recorded in the first quarter of 2015 (34 % y-o-y), while in terms of value is recorded a slight decrease (-6% y-o-y). The increase in the number of transactions processed through AIPS reflects the automation of the government securities settlement with the creation of AFISaR and interlinks with AIPS. In the field of money laundering prevention and terrorism financing, during 01.09.2014 – 31.03.2015, a total of 856 suspicious activities (SARs) were reported. As compared with the same period one year ago, the trend of SARs has more than doubled. With regards to administrative measures, violations encountered and identified by GDPML were followed by 26 administrative measures during September 2014- March 2015. Compared with the same period one year ago, the number of administrative measures has increased. CHAPTER 5: PUBLIC PROCUREMENT Institutional set up and legal alignment Public Procurement is regulated by duly enforced policies and procedures that reflect the principles of the Treaty on the Functioning of the European Union and the European Union acquis, and are supported by suitably competent and adequately resources institutions. The Public Procurement system in Albania is fully governed by the principles of transparency, non-discrimination, fair competition and equal treatment of participants in the public procurement procedures. Such principles are explicitly enshrined in the provisions of the legislation on public procurement, whose purpose is to ensure e better use of public funds, boost competition among economic operators, ensure an equal and non-discriminatory treatment of all the economic operators who participate in public procurement procedures, and to guarantee public confidence and transparency in such procedures. The TFEU principles apply to all procurement procedures including those of small values. The transparency in conducting the small value procurement procedures is maximized, given that since 2013 they are being conducted electronically. • Alignment (i): The regulatory framework in this field is generally compatible, but not fully compliant with the acquis. Albanian law No 9643 of 20.11.2006, “On public procurement” is partially approximated with the following EU Directives: 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 (as amended), Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (as amended), Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (as amended by Directive 2007/66/EC). In the framework of approximation of public procurement legislation, in the month of December 2014, there were approved some amendments to the current law. These amendments were approved with Law No. 182/2014, “On some amendments and addenda to the Law No. 9643 of 20.11.2006, “On public procurement”, as amended. Some of the amendments approved do further approximate the provisions of Directive 2004/18/EC and the new Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC. In concrete, with the abovementioned law were added as exception case from the public procurement law, the employment contracts. Such addition is in line with the new directive 2014/24/EU, which does also foresee this exception case. In line with the respective EU directives comes the adjustment regarding the tender security, which was left as a possibility to be submitted by the economic operators, only for the public procurement procedures above the high value thresholds. Tender security is not foreseen neither in 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, nor in the new Directive 2014/24/EU. To the abovementioned approved amendments were foreseen some other addenda and amendments, aiming the accuracy of the current law provisions and in order to avoid cases of their mis-interpretation by the contracting authorities, in framework of efficiency increasing of procurement procedures. With respect to legal framework, in the National Plan for European Integration, there is foreseen further approximation with the new Directive 2014/24/EU, for the medium term period, 2016-2017. • Alignment (ii): With regard to concessions, in April 2013 was adopted a new law No 125/2013 “On concessions and public private partnership”, which is partially approximated with 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 (as amended). Currently, there are being drafted some amendments to the mentioned law. Such amendments aim the approximation with the new directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts. With regard to defense procurement, since there is not any approximation yet, in the National Plan for European Integration it was foreseen approximation with Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC. This approximation is foreseen to be partial. For a better implementation of the primary legislation the secondary legislation, is further completed, consisting of public procurement rules and the Instructions and Guidelines, which prescribe in detail the law provisions. Thus, pursuant to the latest approved amendments to the public procurement law, PPA did prepare the relevant amendments to the public procurement regulations, which were approved by the Council of Ministers Decision No. 914 of 29.12.2014, “On the approval of public procurement regulations”. Thus, the previous Council of Ministers Decision No. 1 of 10.01.2007, “On the approval of public procurement regulations”, as amended, was abolished. The main purpose of preparation and approval of a new decision on public procurement rules was the riorganization of the previous document, and also the adjustment in a more clear and chronological way of the procedurial steps to be followed in the procurement process. There were prepared and approved by PPA the relevant instructions, according to the respective issue they regulate. PPA prepared and approved the following instructions:
Both primary and secondary legislation were published on the website of the PPA (www.app.gov.al). With regard to the relation with budget and expenditure regulations, based on the public procurement legislation, public contracts are with duration of 1 year, according to the budget year. In exceptional cases, such contracts may be concluded for several years, and in these cases must be coordination with the budget on the availability of funds by the respective contracting authority. Whiles, according to the public procurement legislation, a procedure may be launched even if the contracting authority does not have funds in its account, according to an Instruction of the Ministry of Finance, contracting authorities have to start the procedure when they have available the funds for the procurement procedure. This impediment causes delays in conducting public procurement procedures from the contracting authorities, and non – coordination between the two acts. The PPA is the central body responsible for the supervision and monitoring of public procurement procedures. It has the competence to submit proposals for legislative amendments in this field and to provide legal advice, under request, for contracting authorities undertaking public procurement procedures. In addition, PPA has the same competencies in the fields of concessions/public private partnerships and public auctions. In respect of its human resources, PPA has currently 23 employees. Meanwhile, with the Council of Ministers Decision No. 12 of 14.01.2015, “On the redestribution of the empolyees numbers, among the Ministry of Defence and the Public Procurement Agency, for the year of 2015”, the number of Public Procurement Agency employees was increased with 5 more persons, leading to its total number to 28 persons. A Strategy on Public Procurement establishing concrete objectives and defining concrete actions toward their achievement was adopted in December 2014 by DCM 908, dated 17 December 2014 as part of the overall Government Strategy on the Management of Public Finances 2014-2020. The overarching goal in the area of public procurement is to develop modern, sound and effective systems for public procurement and concessions while ensuring gradual harmonisation of the legal and institutional frameworks with the acquis and EU standards and good practice. The principal priorities and objectives for the development of the public procurement system are:
The official website of the Public Procurement Agency (www.app.gov.al) is the main electronic portal where all relevant information regarding public procurement, concessions/PPPs and public auctions are published. This is the portal where all the procurement and concessions/PPPs procedures are being carried out electronically. Aside from the updated legislation (laws, regulations and instructions) in these fields, at the website are found published manuals, reports of different international institutions and other materials that help in analysis and interpretation in practice of such legislation. Moreover, PPA does publish the Public Notices Bulletin, where is found information with regard to the notices of procurement procedures, concessions/public private partnership and public auctions, the list of economic operators excluded from participation in these procedures, according to the decided period, and any other information necessary for publication. In accordance with the competencies provided by the law on public procurement, the PPA is the competent authority in charge for monitoring the public procurement procedures. In order to exercise such competence, PPA prepares 3-month monitoring plans, through which determine the procurement procedures to be monitored and the respective contracting authorities. The monitoring process is focused to the verification of public procurement legislation implementation, with the aim to provide to contracting authorities legal advice for the problems encountered during the conduct of procedures. Regarding the reporting period, PPA prepared a Plan for the period October-December 2014. Through this plan were monitored 21 procurement procedures, where 11 of them were negotiated procedures without publication of the contract notice. Most part of monitored procedures is negotiated without publication, in order to identify the reasons and legality of such procedures as chosen by contracting authorities. Reporting on cases and reasons for the negotiations without publications procedures has been one of the highlighted requests of the European Commission, regarding public procurement field. Likewise, in February 2015, PPA prepared the 3-month monitoring plan for the period February – (beginning of) May 2015. In accordance with this plan, there are foreseen to be monitored 33 public procurement procedures, where 14 are negotiated without publication procedures. At the end of such process, PPA decides for the relevant administrative measures, when identified violations of contracting authorities in respecting the legal and sub-legal requirements. As regards implementation and enforcement capacity, the contracting authorities are adequately staffed and resourced and carry out their work in accordance with applicable regulations and recognised good practice, interacting with an open and competitive supply market. Planning and preparation of public procurement procedures is part of the process, and consequently there are provisions for their regulation, in the public procurement legislation. In the framework of recent adopted legislation, PPA prepared and approved Instruction No. 2, dated 27.01.2015, “On the preparation of forecast and realization register of public procurement”, where are provided in detail the respective steps to be followed by contracting authorities.
Monitoring of contract performance is made by the respective contracting authorities and the auditing bodies, which have concluded the concerned public contracts. Public procurement legislation has a specific and direct provision in relation to corruption cases and conflict of interest. According to Article 26 of the Public Procurement law no. 9643 of 20.11.2006, as amended, the contracting authority refuses the tender or the request for participation in a tender if: a) the tenderer or candidate gives, or promises to give, directly or indirectly, to any current officer a gratuity in any form, an employment possibility or any other good or service of value, as an inducement with respect to an act, decision or procedure followed by the contracting authority in connection with the procurement procedure. b) the tenderer or candidate is in circumstances of conflict of interest. According to this article, a public procurement official shall be excluded from the process and replaced if a possible case of conflict of interest is identified at the moment of offers evaluation. Furthermore, if the cases of corruption and conflict of interest constitute a criminal offence, these actions not only lead to the refusal of the offer but criminal complaints may be filed with the relevant bodies. In addition, aiming to prevent conflicts of interest in procurement procedures, Council of Ministers Decision no 914 of 29.12.2014 “On the approval of public procurement rules”, defines that the head of the contracting authority or the official authorized by him for launching the procurement procedure shall guarantee a clear division between the tasks of officials/employees involved in drafting the tender documents and those involved in the evaluation process and in the selection of the winning economic operator. When appointing a procurement official, the legal requirements in relation to preventing conflict of interest, must be kept into consideration. Each official that participates in the procurement process has to sign a statement, declaring that he is not in conflict of interest circumstances. According to the same decision, the obligation for signing statements in relation to the conflict of interest circumstance applies equally to the economic operators that make offers in this procedure. Upon submitting tenders/proposals, the economic operators are invited to sign the statement in which they declare that they are not in conflict of interest circumstance, according to legislation in force. Furthermore, PPA does exclude an economic operator from the participation to public procurement procedures, when a final decision is taken for that operator from the Commission of Competition Authority in case of collusion. Since January 2009, all public procurement procedures (except for the negotiations without publication of the contract notice and the second phase of consultancy services and design contest procedures) are being conducted with electronic means. In this regard, PPA prepared and published at its official website all the relevant instructions and manuals in the use of electronic system, for both parties of the procurement process, contracting authorities and economic operators. After the recently adopted legislation of public procurement, Council of Ministers approved the Decision No. 918 of 29.12.2014, “On the performance of public procurement procedures with electronic means”. This decision redefines the obligation for electronic performance of procurement procedures, by explicitly expressing the exception from the electronic conduct for the negotiated procedures without publication of the contract notice, the second phase of consultancy services and design contest procedures, procurement procedures for the purchase of electrical energy. Such exception was made due to the specifics of these types of procedures. In accordance with this decision as well, small value procurement procedures below 100 000 lek and those in emergency cases shall be conducted in paper form. Since April 2012, concession procedures have been conducted with electronic means. This includes online publication of the concession procedure documents and electronic bidding. Also, after the new law no. 125/2013 “On concessions and public private partnership”, and the relevant secondary legislation were adopted, the obligation of conducting electronically concession and public private partnership procedures was redefined by the Council of Ministers Decision no. 130 of 12.03.2014 “On conducting electronically the competitive concession/public private partnership procedures”. The framework agreements are regulated by the public procurement law no. 9643 of 20.11.2006, as amended. While further details regarding types of framework agreements, duration, parties to the agreement are stipulated on the public procurement rules, approved by Council of Ministers Decision no. 914, of 29.12.2014. In order to further facilitate the work of contracting authorities and use such agreements correctly, PPA prepared and adopted the Instruction no 6 of 27.01.2015, “On the use of the framework agreement” as amended. Furthermore, in order to encourage the contracting authorities to apply framework agreements, PPA, in collaboration with SIGMA prepared a manual on using these agreements. It was followed by 2 trainings, by one day each, on 24 and 25 March 2015, with representatives of central contracting authorities, respectively high level officials on 24 March and procurement officials on 25 March. Currently, some contracting authorities have published to conduct framework agreements. The public procurement legislation includes the obligation to stimulate competition. There are tender documents, which have categories of criteria and as well requirements for technical specifications. Not necessarily every contracting authority has a procurement function in its personnel. However, in any case contracting authorities must have a procurement unit, where may be appointed employees who carry out other duties within the contracting authority. Based on article 13 of the mentioned public procurement law, PPA has competence to organize the qualification of public procurement employees in contracting authorities. When new legislation adopted and as well on the basis of requests for training submitted to the PPA, the latter, usually in collaboration with the Albanian School of Public Administration, organizes and offers trainings for employees. With regard to monitoring the public procurement system and in accordance with the competencies given by the law on public procurement, PPA prepares every year and publishes on its website the Annual Report, which contains a detailed overview of the main legal and institutional developments on this area during the given year. Likewise, the report contains statistical data on public procurement, concessions/PPPs and public auctions procedures. Other means which assist in measuring performance and outcomes in public procurement field are the different reports of international organizations, such as the EU progress reports and the SIGMA reports. On Efficient remedies system: In case of alleged breaches of procurement rules, aggrieved parties have access to justice through an independent, transparent, effective and efficient remedies system. On the implementation of the procurement legislation, the Public Procurement Commission (PPC) is the highest body in the field of procurement, which examines complaints on public procurement procedures in compliance with the requirements established by the Public Procurement Law in Albania. Candidates for the PPC membership can be any Albanian citizen that meets following criteria: must have full capability to act; must hold tertiary education; must have at least 5 years of work experience, from whom 3 years in field of public procurement; they cannot be convicted by final court decision for carrying out criminal offence; they cannot been dismissed from previous employment or a civil service function for disciplinary reasons The similar conditions are stipulated for the appointment of the County Court judges (condition stipulated by Directive 89/665 EEC). On the independence of the review body: the members of the Public Procurement Commission are elected by the Council of Ministers, upon a proposal of the Prime Minister, with the right of only one re‐election. The Council of Ministers appoints a chair and a deputy chair from the members of the Public Procurement Commission. Regarding the transposition of the acquis the contract annulment and imposition of penalties are included at the Public Procurement Law of Albania, precisely article 24 and article 72 on imposition of penalties. On the review and remedies system, for a speedy, effective and competent handling and resolution of complaints and sanctions, the Public Procurement Commission in implementation of the Law, starts the procedure with the administrative review - meaning that starts with the contracting authority and then after finishing that procedure. The Public Procurement Commission is the authority where the Economic Operators direct their complaint for a procurement procedure. The decision of the PPC is final in its administrative way. Nevertheless, according to Public Procurement Law, art 64/3, the party has the right to appeal the decision of the PPC in the First Instance Administrative Court in Tirana; however the procurement procedure is not suspended. About the staff, the PPC has inspectors and supported personnel which functions are to support and advise the members of the Commission in the context of considering the appeals and other duties assigned by the chairman of the Commission. The duties and functions of the supported personnel are stipulated in the organizational structure and approved by order of the Prime Minister. On access of economic operators to remedy system, without discrimination and excessive costs, can be mentioned that the Public Procurement Commission within the legal deadlines complaints by the contracting authorities, economic operators and persons interested in a procurement procedure makes available the opportunity to become familiar with the complaints submitted to it, in real time. According to the decision of Council of Ministers, No. 261, dt. 17.3.2010, fee to be paid for the reviewing of the complaint by PPC shall be 0.5% of the budget of the procurement procedure. For Fee for Concession and Mine, according to the Law No. 9663, dt. 18.12.2006 "For Concessions", fee to be paid for the reviewing of the complaint by PPC shall be 10% of the guarantee value of the concession offer. For the complaint procedure of mine licensing, the law of concession will be applied. As regards, Fee for Public Auction, according to the decision of Council of Ministers, No. 56, dt. 19.01.2011, fee to be paid for the reviewing of the complaint by PPC shall be 0.5% of the budget of the initial value of the auction. As regards Fee Payment Procedure, is approved the Order of Ministry of Finance, No. 95, dt 11.11.2009 "For the Approval of Invoice Bill". In implementation of this act the economic operators should be presented at the finance office of PPC to withdraw Invoice Bill Form, before payment transaction. Concerning the stakeholders, the number of complains is increased from one year to the other since the PPC is functioning. CHAPTER 6: COMPANY LAW Directory: files -> documents files files -> Fall 2013 Spring 2014 Program Data: Standard 1 Exhibit 4d files -> Hanban – asia society confucius classrooms network 2010 request for proposal files -> Northern England’s set-jetting locations documents files -> Report: Shelter Support Mission to Afghanistan documents files -> Information and Communication Technologies for Reconstruction and Development Afghanistan Challenges and Opportunities documents files -> Humanitarian Civil-Military Coordination in Emergencies: Towards a Predictable Model documents files -> Rapid Education Needs Assessment Report documents files -> H Report of a Workshop on Coordinating Regional Capacity Building on Gender Responsive Humanitarian Action in Asia-Pacific documents files -> Arizona Department of Administration Risk Management Statewide Motor Vehicle Safety Policy Download 3.84 Mb. Share with your friends:
|