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Институт Политических и Правовых Исследований Академии наук , Молдова
Adoption of EU legislation on public procurement policies created conditions for open competition and rise of the market in this area. Enforcement. This goal allowed the development of national and European companies which become competitive in global and European markets. Therefore was appropriate to develop national legislation on public procurement. Obviously wereharmonized national rules in Member Statesandstates accedingto the EU. So EU coordinated and is coordinating the procurement procedures and creates conditions for various companies to participate in auctions and tenders for obtaining public contractsin different fields. In this case all firms can compete for public contracts based on equalityand objectivesprinciples. Obviously, these principles and policies of the EU have founded stipulating in documentsand directivesin this meaning. Studyingliterature and EU publications in this regard, we can conclude the following principles and rules of EU law on public procurement: Free competition of enterprises in public procurement; Rational using of public finances, ensuring and choosing thebest offers; Accessibility of Economic operators to the internal market and to the third country markets; Accessibility of Economic operators to the system ”Registrul de Stat al Achizițiilor Publice" (SIA RSAP)(Automated Information System).
Keywords: procurement, harmonization, competition of enterprises, Economic operators, recommendations.
Принятие законодательства ЕС по вопросам политики государственных закупок создали условия для открытой конкуренции и подъема рынка в этой области. Эта цель далoвозможность развитии европейских компаний которые стали конкурентоспособными на мировых рынках и Европы. Поэтому целесообразно разработать национальное законодательство о государственных закупках. Очевидно, что они согласованы национальные правила в государствах-членах и присоединении к ЕС. ЕС согласовал и координирует процедуры закупок и создает условия для различных предприятий для участия в тендерах и конкурсах на получение государственных контрактов в различных (сферах развития) областях. В этом случае все фирмы могут конкурировать на получение государственных контрактов на основе равенства и объективных принципов. Очевидно, что эти принципы и условия политики ЕС найти в документах и директивах в этом отношении. Изучение литературы публикаций ЕС в этой связи, можно сделать вывод, следующие принципы и нормы права в политике государственных закупок ЕС: Конкуренция бесплатно для предприятий в государственных закупках; Рациональное использование государственных средств, гарантировать качество и выбор предложений; Доступ экономических операторов на внутренний рынок и на рынках третьих стран; Доступность операторы в "Государственный реестр государственных закупках» (SIARSAP) (автоматизированной информационной системы).
Ключевые слова: ГОС закупки, согласование, конкурс предприятий, экономические операторы, рекомендации
Anessential principle must also be transparency. EU provides transparency inawarding contracts. The procedurefor the award of tenders must respect every step of transparency and also to allow equal opportunity for all parties to the auction. This principle refersboth to operators as residents and non-resident excluding preferential margin repealed byLP267from23.12.11. It should be pointed out that the European Court of Justice developed this legal principle and gavelegal possibility to apply it in varioustypes ofprocurementin Moldova. Compliance of principles of transparency leads to full and correct compliance of participants in the tender. Supreme Court of Justice adoptedvarious resolutions for breach of the principle of transparency. Lack of transparencyleads to illegality contracts and is a flagrant violation of national and European legislation on public procurement. The principle of transparency is manifested by the requirement to use the open and restricted procedures.Use ofthe negotiated procedure is an exception from the requirement to use open andthe restricted procedure of auction - interpretedrestrictively, required to issue a public contract and the notification of award, ban on the dividing the contracts todecreasethe relevant thresholds, and other procedures. In order to ensure the principle of transparency in public procurement EU uses informational technologies, SIMAP System - Informational systemforEuropean publicmarkets. Since October 2012, was launched Automated Informational System "Registrul de Stat al Achizițiilor Publice" (SIA RSAP). The platformis the first step in implementationprocess of digitizationofprocurement. The new system transposes procurements inan effective, transparent and competitive mechanism. Launch of Automated Informational System "Registrul de stat al achizițiilor publice" increases transparency, effectiveness and credibility of the procurement process in Moldova. Digitizing of procurements contributes to the formation of acompetitive business environment and to increase clarity about how public money is spent.
For effectiveuse of financial resources by applying the principle of transparency in the process of makingtheprocurement procedures have been proposed several proposals in this regard (Anexa1:scrisoarea către Direcția Juridică a MDRC nr.04/2-11 din 28.01.2014, Executor:Roman Mereuță):
- Placing onwebpages of contracting authoritiesin the rubric „Achiziții publice” three divisions as follows: „Planificare”, „Proceduri” and „Contracte”, which will facilitate public access to information on public procurement organized by ADR.
- Publication on the site reports onthe conclusion of small value contracts for a semester, according to Regulation procurement of low value, approved by the Government of the Republic of Moldova No. 148 of 14.02.2008.
- Acquisition ofeconomical operators to apply SIA system, that will facilitate informing them about the procedures organized by contracting authorities.
- Signingstatements of confidentiality and impartiality by working group members who are missing on meetings for opening tenders but are participating in theevaluation of tenders.
- Сreating a list ofadvertisements about the LP feasts on the website of public institutions.
- The possibilityof adjusting the price must be indicated both tender documentation and contract which will be concluded byspecial provisionsin this regard.
- Minutes ofmeetings of solving complaints from AAP must be publishedon the website ofthe institution.
- Besides notices of intent, stateinstitutions should be required to publish web pages, their budgets and balance sheets, that any interested person can follow the allocation and spending of public money.
Another essential principle is open competition in public procurement. Open competitionis a principle such as transparency and equality. Open competition remains a fundamental and primary purpose of the public procurement regime. Legal obligations in the competition which also are technical standards that are used to specify the goods and services to be purchased. Tenders must demonstrate that they correspond with technical standards, which will beevaluated. Iftheydo not match with standards they can’t be exposed to competition. We conclude, that namely the restrictive provision of standards reduces the number of participants in public procurement and obviously minimizes competition. In this respect the EU has clearly exposed that "... Technical specifications must not have the effect of creating unjustified obstacles to the opening up of public procurement to competition". Anothergeneral principle of public procurement is equal treatment, which is similar to the principle of non-discrimination. This principle is referred more in grantawardcompetition lawandequitylaw. In this case we can talk about the right to equal opportunities in public purchasing process. We should also refer to the equal right of access to information, theirdisclosureamount, etc. Equality can be observed only by maintaining neutrality in the public procurement process.
In order to improvethe legal framework for public procurement in terms of improving the principles applied in this area have been proposed several changes: (Anexa2: scrisoarea către Direcția construcții materiale de constucții și tehnologii moderne a MDRC nr.04/2-10 din 28.02.2012, Executor: Roman Mereuță):
- At therulesonprocurementworking group in section. 3:to includethe following changes: Theworking groupof the contracting authority can be co-opted voting staff person within the records of the institution subordinated to the contracting authority.
- At the rules on public procurement works: the item. Amendment 67 we propose to be introduced: In order to prevent distortion of the information in the content of tenders submitted and saving public finances to the displacement of at least 5 members of the working group, group meetings can be held in external contracting authority only in cases expressly provided for by law.
- At the rules on public works: the item. 153 to include change: Do not presenting the public procurement tender guarantees and performance guarantees that are not issued by banks.
- At the rules on public works: the section. 165 to include the change: the contracting authority has the obligation to issue / return performance guarantee as follows: a. 70% of the guarantee within 14 days of the conclusion of the reception report on completion, if not raised by that claim on it, and the risk for concealed damage is minimal; b. the remaining 30% of the guarantee, the warranty period of the work executed, based on the minutes of final acceptance.
- The rules on public works: the item. 165 to include the change: The final acceptance report shall be made only after the expiry of the warranty on the work. Final acceptance shall be convened by the investor within 15 days after expiration of the warranty period. The warranty period is stated in the contract.
- Changing public procurement legislation related to verification and registration documents for tendering procedures and contests COP to goods, services and works in the territory of the second level (district) by the Public Procurement Agency representative bodies, except for contracts greater than 2, 5 mln. lei on goods and services, 99.0 million lei to works.
Procurement policy in RM is determined by the legislation adopted by Parliament and the legislative implementation by the Government. Legal and public policy is determined by the issuing country as a feature of budgetary discipline that contains principles of administrative law but also economic and competitive policy. Responsibility for the implementation of public procurement in Moldova was historically delegated to agencies in the field - National Agency for Government.
Our goal was to examine a various number of EU directives and national laws in public procurement domain where we applied comparative method in order to examine them and has been highlighted numerous proposals to harmonize legislation in this area. The necessity of involving EU law appears in the law of the country and the approximation of laws on public procurement. Follow that some EU rules should be harmonized in Moldova, with advisory comments and recommendations on the advantages / disadvantages of full harmonization.
Harmonization of legislation must determine the primary legislation (Act No. 96 since 2007 on public procurement) which is in an acceptable state for greater harmonization with EU directives and regulations. It uses some specific correlation although in some provisions principles are lacking. This continuous improvement of Moldovan legislation by adopting amendments and increasing EU harmonization. A greater harmonization will result probably more provisions through amendments to this law, but if you use a full use of the advantages of relying on secondary legislation, any expansion in the text can be kept to a minimum level.
There is a need to amend Law No. 96 since 2007 on public procurement to achieve minimum harmonization levels appropriate to facilitate harmonization and an advanced degree. Currently there is provided a legislative initiative on amending and supplementing.
It is observed that the current functions of the Agency have been conferred by legislation, whereas the primary law still reserves the features of its predecessor, and so this discrepancy should be resolved. It is a technically compared to the overall assessment, but probably has constitutional implications. Indispensable is the ability and experience of implementing the application of Law no. 96 of 2007 on public procurement is continuing to review and registration of tender documentation and contracts to deciding appeals. It is unclear how effective this enforcement role as the Agency receives up to 100 bids to review each day from about 12,000 contracting authorities in the country, and over 400/500 complaints (which are 400 in number 2010) that are received in a year. In result, however, it seems that the personnal involved in these examinations agency has considerable experience in the areas of competence.
Experts reveal the early approval RM-EU legislation on public procurement lacked Common Procurement Vocabulary. Thus, with the release of "Registrul de Stat al Achizițiilor Publice" (SIA RSAP) were taken CPV codes that were included in it.
Control contracts also acts as a check on compliance. Number of complaints received annually is at a level that suggests the view that the Agency can exercise regulatory control, but is low in contrast to the number of contracts subject to the full rigor of the system.
The framework agreement seems to be properly implemented, in principle, the 2007 Law on public procurement, without basic necessities of secondary legislation where resources for preparing secondary legislation in this area is not available, the Agency should able to use their regulatory powers under Article 9 to develop a non-binding model for use by contracting authorities. Because they are able to record (and therefore not recorded) contracts under the law, they could prevent any abuse of the system by not registering binding framework agreements to the existence of a legal procedure.
Closed procedure seems to be based on an EU restricted procedure, but can be used only if certain conditions are met, which is not a requirement in the EU model. It is recommended that these conditions be removed.
It is difficult to reconcile the demand for price quotes criterion award by lowest price. The 2007 Law on public procurement seems to intend it as a separate procedure, and not one of the two award criteria should be made available, in principle, moreover, it would not really be recommended. It seems little prospect that the request for price quotations to be regarded as lawful under the EU regime, and this should be re-stated that the criteria for the award of costs.
The negotiated procedure is based on the EU, but only reproduces some cases allowed by the Directive. This in itself is generally considered satisfactory.
Institutional changes needed in 2015: Creating a legal basis for an independent procurement agency and self-financed; Creating judicial panel to review disputes; Establishing an international systematic and statistical reporting; Centralization of certain public roles, according to a methodology based on thresholds; Develop institutional capacity of the Agency.
Recommendations and priorities for future. Based on the analysis and evaluation of the level of harmonization of the legislation of the Republic of Moldova in the field of public procurement that future efforts for the immediate future must be guided by the following considerations and recommendations:
1. Amending and implementing primary law to achieve the minimum level of harmonization, facilitating approximation to an advanced degree.
2. Public Procurement Agency must be an independent legal entity, must have clear and definite separation of functions, duties and responsibilities between the agency and the contracting authorities and economic operators between the agency and between agency and institution responsible for enforcement. An agency should achieve financial independence and self-management.
3. Propose to create of the Agency for Solving Complaints
4. Agency should be given additional powers, such as the right to appeal to the courts in order to enforce its supervisory function.
5. Necessity use guidelines and codes to really streamline procurement practice
6. Law No. 96 of 2007 on public procurement work rule concessions, which is not permitted by the EU directive. This should be examined urgently. Development and adoption of a new law regulations in this regard.
7. Closed Procedure seems to be based on the procedure restricted / limited to the EU, but can be used only when certain conditions are met, which is not a requirement in the EU model. We recommend removing these circumstances.
8. It is assumed that there is the prospect that the request for bids to be considered legal within the EU regime, and this should be re-stated as the basic award criteria price.
9. The general approach for establishing time limits strictly correspond to the EU model, but the actual time limits are less than the minimum required under the EU regime and therefore must be changed.
10. The overall award criteria is less satisfactory and should be reviewed taking into account the approach adopted by the EU, which the Public Procurement Act 2007 seeks to reproduce.
11. With regard to details of the winning bidder, there is a requirement to notify unsuccessful bidders within 10 days of the conclusion of the contract. This is not in accordance with the EU model, which requires notification of award to all bidders, including the winning bidder before signing the contract.
12. It is not clear how it works period of 10 days for filing complaints, especially if the circumstances constituting grounds of appeal relate to the rejection date or the date on which reasons are given.
13. There are no provisions on the powers of the court, which would be a significant deficiency, given that panel (group of judges) who makes decisions on appeals within the agency meets the requirements set out in the review bodies EU model.
It is recommended that at least 24 disputes are heard by a panel / external panel, consisting of a person who has the status of a judge or has the qualifications to be appointed judge.
These proposals remain the obligations undertaken by the Republic of Moldova in the context of the Association Agreement on economic developments.
1. Legea nr. 96-XVI din 13.04.2007 privind achiziţiile publice.
2. Directiva Consiliului 89/665/CEE din 21.12.1989 privind coordonarea legilor, regulamentelor şi prevederilor administrative cu privire la aplicarea procedurilor revizuite la contractele de lucrări şi aprovizionări publice, JO L 395 din 30.12.1989.
3. Directiva Consiliului 93/36/CEE ("Directiva privind aprovizionările") din 14 Iunie 1993, JO L 199 din 09.08.1993.
4. Directiva Consiliului 93/37/CEE din 14.06.1993, JO LI 99 din 09.08.1993.
5. Directiva 2004/17/CE a Parlamentului European şi a Consiliului din 31.03.2004 privind coordonarea procedurilor achiziţiilor publice ş.a. proceduri (Directiva privind Utilităţile), JO L 134 din 30.04.2004.
6. Regulamentul Comisiei (CE) nr. 213/2008 din 28.11.2007 de modificare a Regulamentului (CE) nr.2195/2002 şi Directivele 2004/17/CE şi 2004/18/CE ale Parlam. European şi Consiliului cu privire la procedurile achiziţiilor publice, privind revizuirea VCA, JO L 74 din 15.03.2008.
7. Regulamentul Comisiei (CE) nr. 1564/2005 de modificare a Regulamentului (CE) nr. 2195/2002 cu privire la Vocabularul Comun al Achiziţiilor (VCA) din 16.12.2003.
Directiva Consiliului 89/665/CEE din 21.12.1989 privind coordonarea legilor, regulamentelor şi prevederilor administrative cu privire la aplicarea procedurilor revizuite la contractele de lucrări şi aprovizionări publice, JO L 395 din 30.12.1989.
Legea nr.96 din 13.04.2007 privind achizițiile publice
Directiva 2004/17/CE a Parlamentului European şi a Consiliului din 31.03.2004 privind coordonarea procedurilor achiziţiilor publice ş.a. proceduri (Directiva privind Utilităţile), JO L 134 din 30.04.2004.
Regulamentul Comisiei (CE) nr. 1564/2005 de modificare a Regulamentului (CE) nr. 2195/2002 cu privire la Vocabularul Comun al Achiziţiilor (VCA) din 16.12.2003.