Policy Brief. Public e-procurement at the local level in Albania. Challenges in the fight against corruption. Mona Xhexhaj

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1 Policy Brief Public e-procurement at the local level in Albania Challenges in the fight against corruption Mona Xhexhaj This policy brief has been prepared in the frame of the TRAIN Programme 2014 (Think Tanks Providing Research and Advice through Interaction and Networking), which is supported by the German Federal Foreign Office (Stability Pact for South East Europe) and implemented by the German Council on Foreign Relations (DGAP) 1

2 Introduction The guarantee of the rule of law remains one of the key criteria for Albanian accession to the European Union. One of the hallmarks of a society governed by rule of law is the fight against corruption and the increase of transparency. Transparency is an important principle of the EU s legal framework, and it is the common understanding that a public procurement regulation based on transparency prevents corruption. To overcome the lack of accountability and transparency in public procurement, Albania became one of the first countries in the world to introduce in 2009 a fully electronic procurement system for all public sector tenders above the threshold of 3,500 Euro 1. Compared to paper-based procurement, the e-procurement system has contributed to good governance, deflecting corruption, increasing transparency, reducing costs, and saving time. The process of European integration implies the effective implementation of electronic public procurement and indicators of success. According to the 2013 Progress Report for Albania, public procurement and concessions are still one of the main sectors in which the audit institution has found financial violations. The audit institution reported in March 2013 that violations by both central and local authorities regarding public procurement for the period caused damage to the state of 3.1 million. 2 The latest Progress Report released in October 2014, following the European Commission statement that the e-procurement system functioned well and the number of users increased five times in 2013, addresses the need for substantial work to increase transparency in public procurement procedures, in order to reduce corruption risks and improve competition. 3 1 European Bank for Reconstruction and Development, Albania 2013 Progress Report, pg 22 3 Albania 2014 Progress Report, pg 23 2

3 Through (i) Directive 2014/24/EU on public procurement, (ii) Directive 2014/23/EU 4 on the award of concession contracts, published on March 28, 2014, the European Commission has emphasized that from the new public procurement reforms, the local authorities will be the first to benefit. As part of the enlargement process, candidate countries 5 have to harmonize their legislation with the requirements of EU law, including Public Procurement Directives. This would bring the public procurement system of candidate countries in line with the standards of member states, by incorporating clear and transparent public procurement legislation, efficient e- procurement implementation and competent contracting authorities. Hence, Albania needs to make further progress to align e-public procurement with the EU acquis and continue to reduce the non-competitive and non-transparent procedures. A number of general problems are remaining in the Albanian context in particular, the local level deserves attention, as: 1) a considerable percentage of public procurement concerns the local level, 2) there have been relatively few studies and reports on e- procurement implementation in local government so far 3) e-procurement at the local level is still in a transition process and 4) the local level remains highly vulnerable to corruption. This policy brief aims to analyze the functioning of the electronic public procurement system at the local level in Albania, by evaluating the positive aspects brought about by its introduction and identifies future challenges. During the research stage, we conducted numerous interviews with representatives of institutions in charge of public procurement procedures, economic operators from local businesses participating in tenders (successful as well as unsuccessful applicants), field experts, and 4 EUR-Lex, Directive 2014/24/EU of the European Parliament and of the Council, 5 Albania obtained EU candidate status in June

4 representatives of NGOs who have contributed to different trainings and helped in capacity building of authorities in charge of electronic public procurement. After examining the use of electronic public procurement by looking at different municipalities data, auditors reports, articles form media, and interviews with relevant actors, the policy brief will provide policy recommendations for improvements in implementation. Up-to-date development of public e-procurement in Albania: Legal and institutional framework This section ascertains the importance of introducing an e-procurement system in the fight against corruption compared to previous experiences in this regard. The notion of public procurement systems describes a wide concept comprising the legal framework but also the issue of institutional capacity, administrative practice, and technological facilities. The establishment of e-public procurement in Albania was a big challenge, since it was a completely new system for both Albanian public administrations and the business community. The legislative packages were considered essential for the consolidation and modernization of the current procurement system, and for the creation of conditions necessary for the development of a more efficient and competitive public contracts market. Since 2005 the Government of Albania has had the introduction of electronic public procurement as a political priority. A year later, Albanian Parliament passed a public procurement Law in line with the EU Directive on public procurement matters. In this phase, the approximation of public procurement with EU acquis was partial. Such situation required amendments to the Public Procurement Law, aiming at further approximation with the respective EU Directive. In this spirit, the Albanian Government took a step forward by approving rules for electronic public procurement. 4

5 Albania s system is more developed than in other European states, because the whole procedure from the notice to tendering until the announcement of the winners is done electronically through the system. This is what the new EU directives on Public Procurement aims for to force countries to rethink their procurement systems, redraft laws and make online communication standard for everyone in the market. The Council of Ministers of Albania with the Decision No. 659 dated October 3, 2007 approved the Rules of public procurement by electronic means. 6 Such a decision provided the technical and legal rules necessary to implement public procurement procedures by electronic means at the central and local level in Albania. During 2008 electronic procurement began to be applied in Albania, and by early 2009 it became one of the first countries in the world that had a mandatory electronic procurement system for all public procurement with a value of over 3500 EUR. Since the establishment of a public procurement system in Albania, this electronic application is seen as one of the greatest achievements. Prior to the application of e-procurement, Albania faced major problems affecting directly the transparency of the process. An issue of concern was the limited access of private businesses to tender documents and procedures. The Global Competitiveness Report reported a widespread favoritism by Albanian officials when making contract decisions. Reports 7 have recognized the achievements and benefits of the application of e-procurement system such as: the elimination of direct human interaction on bidding and services, the efficient monitoring of work and services by the government, improved interaction between suppliers, vendors and citizens through the online system, the removal of unnecessary paper work. 6 Public Procurement Agency (PPA), Regulations, 7 For example: 5

6 The institutional framework of implementation of legislation on public procurement in Albania is exercised through the Public Procurement Agency, the Procurement Commission and the Contracting Authority. The Public Procurement Agency (PPA), is the central body responsible for public procurement, which operates as regulatory authority and manages the national procurement system. Since April 2010, the administrative review of complaints has been transferred to the Public Procurement Commission (PPC). Another institution, the Procurement Advocate used to protect the lawful rights and interests of the candidates, bidders or suppliers from unlawful acts or commissions of improper contracting authorities in the field of public procurement, through monitoring and investigating of administrative procedures of public procurement; but in 2012, after four years of operation, it was abolished 8. This abolishment came as result of EU recommendations requiring a clear division of roles and responsibilities between the PPC, PPA and Public Procurement Advocate to be established. According to the Progress Report 2012, the duplications of functions and problems between the PPC and Procurement Advocate when it comes to addressing complaints and monitoring the implementation of public procurement, has to be resolved 9. At the local level, the Municipality, as one of the leading Contracting Authorities, is an important economic actor. The fact that Albania commits 20% of its total GDP annually to public procurement is making this area extremely vulnerable to corruption. The institutions within the municipalities in charge of implementing e-procurement at the local level are the Procurement Offices. The activities of these Offices are focused on the following key aspects: 8 Law no. 9643, Public procurement changed, Act no.35, dt Albania 2012 Progress Report, pg 34 6

7 Responsible for drafting the tender documents, the qualification requirements, giving technical specifications in accordance with procurement laws and regulations, as well as for designing and managing comprehensive documentation of the tender dossier. Monitors the electronic public procurement process and responds to electronic requests for clarification submitted by economic operators. Organizes work so as in set legal deadlines to open to economic operators and be evaluated electronically by the Bid Evaluation Committee. Throughout the procurement process with public funds it designs and administers full documentation for procedures performed in determining the winner of the contract, in order to ensure transparency and allow for the control of law enforcement. With the announcement of the winner in the Public Procurement Bulletin, it designs the contract setting out the rights and obligations of the contracting authority and the entrepreneurial party in accordance with provisions in the Civil Code, laws and public procurement rules. Provides legal assistance to monitor the execution of the contract and provides legal solutions in cases of disputes or infringement of obligations of each party. It sends a detailed report every four months to the Public Procurement Agency on the activity of public procurement. Challenges of e-procurement at the local level A good public procurement should rest on the principles of fair competition, transparency and accountability. Criticism and doubts on the management of the e- procurement system at the local level in Albania refer to evidence of 1) unfair competition as result of the application of specific criteria in the tendering process 2) shortcomings in the legislative framework concerning the complaint procedure: a) staff integrity and expertise b) Independence of the complaint institution c) complaint fees 3) lack of local media and civil society pressure 7

8 Economic damage in the area of procurement Economic damage in As can be seen from the graph (Source: State Supreme Audit), in the period , there was a tendency to decrease the economic damage in the area of public procurement, supported among others by the entry into force of electronic public procurement. Contrary to expectations for a further decline of the damage in this area due to electronic procurement, the years resulted in an upward trend. In 2013, the Audit Department of Local Government Budget found violations in procurement procedures with a financial impact of 27,507 thousand ALL. 10 Tailoring eligibility criteria As the main cause of the financial violations in local procurement rests the unfair competition. A major difficulty faced by local economic operators is the specific and detailed criteria expressed in tendering offers. Tailoring the eligibility criteria to exclude most of non-wanted bidders can effectively inhibit fair competition. The combination of unnecessarily hard criteria, vague and subjective criteria set by the municipality as a contractor authority has in many cases excluded some companies in an early phase, resulting in the desired bidder remaining the eligible bidder. The price submitted is 10 Audit Supreme Court Report

9 considerably above the market price. Hence, the favoritism takes resources from purchasers and taxpayers, diminishes the public confidence in the competitive process and undermines the benefits of a competitive procurement process. The favoritism phenomenon does not provide a fair and equal basis for competition and creates monopolies in public procurement. Total Tirana Very much increased and increased Somehow decreased Elbasani Decreased and very much decreased I don't know/na Lezha 0% 20% 40% 60% 80% 100% 120% Only 25% of local economic operators (for example the Municipalities of Tirana, Elbasani, Lezha), think that the actual procedures have helped decrease the level of corruption compared to 2008; 45% of them declare that somehow the corruption in local procurement decreased (source: Monitoring report 2013, Partners Albania, pg 20). Complaining procedure Shortcomings remain in the legislative framework with regard to the complaining procedure. A primary responsibility rests in local officials. In general, the staff is trained and familiar with the legislation and operation of e-procurement, taking in consideration that the Public Procurement Agency in collaboration with the Training 9

10 Institute of Public Administration (TIPA) organizes several training activities at central and local level. The e-procurement process was designed to eliminate the human interface, but at the local level management of e-procurement the human impact is still present. In many cases the contracting authority has not informed economic operators of the reasons for their disqualification. In these conditions, the unknown causes of rejection of the bid, create confusion to economic operators and reduce their chance for a clear appeal. This comes first as result of a low level of knowledge and inadequate qualifications of the local administrations, and second because of non-effective implementation of the law. From an analysis through years, the number of charges against local officials during 2012 and 2013 is about four times higher than in 2009, 2010 and According to the Supreme Audit of State, 75% of the 1161 administrative measures imposed are implemented, while only 35% of dismissal measures are executed. 11 Economic operators have expressed a lack of confidence in the local procurement system, which is not related to the doubts they have in the system of electronic procurement itself, but in the management of the local procurement system. Second, approval of Law no , dated "On some additions and amendments to the law 9643 of "On Public Procurement", the right in considering appeals for economic operators about different procurement procedures belongs to the Public Procurement Commission. Under these conditions, all economic operators who have claims for different procurement procedures must submit complaints to the Public Procurement Commission. Likewise, all contracting authorities must present relevant information on complaints about procurement procedures. In addition, the fee (0.5% of the fund value limit in procurement procedures), which needs to be paid to the Public Commission to file a complaint is considered as a barrier from economic operators perspective. Also, the Public Procurement Commission Director 11 Audit Supreme Court, Report

11 has expressed that the fee affects the level of complaints about procurement procedures, acting as a barrier to procurement appeal in high value since it is in proportion to the amount tendered. 12 According to its annual report, the Public Procurement Commission, during 2013 conducted 81,983,920 ALL as extra income. Of these, 58.1% were returned to complainants. Therefore, the economic operators when complaining of a tender should also take in consideration the alternative that complaints cannot be accepted, and in this case, the fee is not refundable. 13 Lastly, in the field of public procurement review, changes in the Public Procurement Law abolished the institution of the Procurement Advocate, leaving the Public Procurement Commission as the institution in charge to review and handle complaints from economic operators. This decision helped to clarify institutional responsibilities and is expected to make more efficient procedures at the national and local level. In such changes, the monitoring functions are the responsibility of Public Procurement Agency, while the review functions are dealt with by the Procurement Commission. The administrative capacity of the Commission increased from 18 to 20 employees. When in March 2012, the Procurement Commission was placed under the Prime Minister, the economic operators have considered this development as problematic and the insurance of its independence as questionable. Lack of local media and CSOs inclusion The public pressure from the local media and local organizations had not been quite present to report on procedural violations caused by Local Procurement Authorities. Reports do not receive the appropriate attention from local civil society and local media. Many local media are much influenced by municipalities and private companies in their 12 Newspaper SHQIP, 13Public Procurement Commission, 11

12 editorial policy and do not carry out research regarding public contracts and broadcast corruption cases. Another reason comes also as a result of a lack of quality reports and research from the Public Procurement Office in the Municipality, which should include the number of bidders for a contract, prices which operators bid for, the time of execution of works, the supervisory committee and the tender evaluation committee. The publication of the data would increase the liability of persons who value a contract and those who oversee the implementation of a contract. This reflects a lack of work culture in systematic monitoring and reporting of the progress and development of the work at the local level. Conclusion and Recommendations The conditions for a better implementation of e-procurement relies more on institutional, legal and capacity development than the availability of technology, the governance exercise goes beyond ICT aspects. E-procurement will not guarantee an elimination of corruption practices, but it can serve as an instrument toward efficient and effective public administration. Since the new EU legal framework requires a more effective support by an electronic system, it seems that electronic public procurement is an important task to handle and treat in the European Union. The purpose of this policy brief was to identify the impacts of e-procurement at the local level and exploit the opportunities for improving the e-procurement performance. A thorough analysis of the impacts of e-procurement at the local level shows that there is indeed room for improvement. The presence of corruption cannot be denied, and it is a common need to mitigate it. It is therefore important that efforts should be made in different directions and in a short and mid-term perspective: Better coordination between the main stakeholders 12

13 -Conclusion of a Cooperation Agreement between Municipalities and local civil society organizations with the aim to enable the CSO to monitor the processes of public procurement procedures, to increase transparency and accountability in awarding public contracts, to contribute to a better image of Albanian local government fighting corruption. Representatives of civil society will have the possibility to directly participate as observer in the preparation of technical specifications, opening and bid evaluation. After the monitoring, the CSOs should compile a report for each procedure and inform the Local Authority of any possible irregularities observed. -Better coordination and cooperation between the main stakeholders, including anticorruption, audit and judicial institutions, notably with a view to reduce corruption in public e-procurement at the local level. Public procurement depends on a partnership between many actors involved in the process. Joint Tables need to be organized between these actors, as forum for dialogue. The responsibilities and roles of the institutions involved need to be strengthened in order to effectively enable their monitoring and control mechanism. -The complaining fee paid by economic operators to the Procurement Commission, which is in proportion to the amount tendered, needs to be regulated in order to give a possibility of appeal to procurements in high value. There is a need to change the fee in view of equality and fairness in the bidding process Capacity building strategy -The Municipality should systematically evaluate the Procurement Office s staff performance based on outcomes and professional behaviors. Administrative measures need to be increased to local officials, so that the public employees are responsible for their work accomplished. 13

14 - An important element to improve electronic public procurement is the training of local e-procurement staff (public sector) as well as of economic operators (private sector). Municipalities or private institutions should regularly offer information and training programs on public procurement. The programs design will be based on the skills gap identified in the evaluation process. The acknowledgement of the system by the two parties (contracting authorities and economic operators) is crucial for the wellfunctioning of the process. Especially, the public employees need to be trained on ethics, rules and regulations, and accounting to facilitate the detection of corruption. -The Procurement Agency needs to ensure an Advisory Service to clarify questions or issues by economic operators, local administrators and the public. With the expansion of the e-procurement system, this advice is essential not only to procurement officials, but also to business stakeholders and civil society to encourage the public oversight of such processes. -In order to ensure the drafting of technical specification the municipalities should hire experts in cases when sector-specific expertise is needed. There are defined skill and knowledge profiles for specialized procurement jobs. Information and inclusion of local media and local NGO - Municipalities should update the information on their web page. The information about procurement procedures at the local level should be available in a precise, structured form for the public as a whole. It should contain all the information pertaining to the public procurement process, including statistics on procurement activities, when tenders regularly lead to only one remaining bid. 14

15 - or The Office of Procurement should have a special web page, in which relevant information will be published for the procurement, competing companies, decisions of the evaluation committee and the receipt of bids, reports on the progress of each tender. - The Procurement Office should provide statistical information on procurement, which is essential to evaluate the policies and the operation of the system, to determine if the statistics demonstrate compliance with other aspects of the system that are defined in the legal and regulatory framework. Statistical information can also be a tool for procurement planning and market analysis. The local procurement data can contribute to studies and reports in procurement procedures at the national level. -Better media coverage of the activities of the Procurement Office in municipalities, specifically with an investigative role and pressure in cases of possible violations of public procedures. 15

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