ACCESSION OF ALBANIA TO THE
AGREEMENT ON GOVERNMENT PROCUREMENT
COMMUNICATION FROM Albania
Albania's
Responses to Questions from Canada (GPA/ACC/ALB/12)
on
Albania's Replies to the Checklist of Issues (_GPA/ACC/ALB/2)
The following communication,
dated 27 February 2024, is being circulated at the request of the delegation of
Albania.
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1 LEGAL FRAMEWORK
1. N/A – No clarification questions at this time.
2 SCOPE AND COVERAGE
2. In response to Question 2.7, the table "Number of
procedures concluded with a winner for 2021 and 2022" lists (as well as in
the table below) "Restricted related to the Reconstruction" and "Restricted
above the upper monetary threshold related to the Reconstruction".
a._
Could Albania please elaborate on these procedures or
point to information in the Checklist that describes these procedures?
After
the earthquake of 26 November 2019, and the need to adjust its consequences and
rebuild the affected areas, pursuant to Normative Act no. 9, dated 16 December
2019 "On coping with the consequences of the natural disaster", the
responsible Contracting Authorities, have conducted procurement procedures for
the selection of winners of the framework agreement for the reconstruction
process in the public procurement system. The procurement procedure used
through the Framework Agreement is "Restricted related to the
reconstruction" and "Restricted above the upper monetary threshold
related to reconstruction". These procedures are opened for competition
for everyone that is interested in specific procedures that are only related to
the reconstruction process because of the earthquake, but due to the specific
content, have shorter waiting periods for bids compared to others. The contract
notices for procurement procedures within the reconstruction process have been
published in the Electronic Procurement System.
The
reconstruction process has continued throughout the years 2020 to 2022 and
currently this process is nearing completion.
Based
on the data retrieved from the Electronic Procurement System, for 2023 there
are only seven notices related to the procedure "Restricted related to
reconstruction", which comprises 0.17% of the total number of published
procedures on 2023 and, expressed in value, is ALL 214,432,678[1] (Approx. EUR 2,062,249.25) comprising only 0.16% of the total limit
fund and are mostly supervision services.
3. In response to the same Question 2.7, in the table
"The Value of procedures in 2021 and 2022 in Albanian Lek", there
seems to be a corresponding decrease from 2021 to 2022 for "Open
Procedures" and increase from 2021 to 2022 for "Open above the upper
monetary threshold" for services and goods.
a._
Could Albania please elaborate on the figures that
appear in this table?
The
adoption of the new law on public procurement, Law 162/2020 "On Public
Procurement" which entered into force on 31 March 2021, is followed with
the adoption of the secondary legislation, by which significant changes
regarding the monetary thresholds are made.
The
monetary thresholds were changed and as a result, the high monetary threshold
has been lowered considerably, thus a lot of procedures which in previous years
were considered as procedures under the high monetary threshold, during the
second half of 2021 and onwards, were classified as procedures above the high
monetary threshold. This has led to an increase in the use of the "Open
procedure above the upper monetary threshold". It must be emphasised that,
in these procedures, the bidding period is longer and the standard tender
documents are published in Albanian and English.
3 NON-DISCRIMINATION
4. In reference to the response to Question 3.4, could
Albania please elaborate on how it defines "persons in need"?
The
definitions related to the concept of persons with disabilities or persons in
need are found in the legal provisions in the field of social protection, among
others, in Law No. 121/2016 "On social care services in the Republic of
Albania". This definition refers to people from vulnerable groups other
than disabled people.
4 AVOIDANCE OF CONFLICTS OF INTEREST AND PREVENTION OF CORRUPT
PRACTICES
5. In response to Question 4.1., Albania indicates that
officials engaged in the procurement process and any interested party who has
information on corruption is obliged to inform the competent bodies.
a._
Could Albania please elaborate on the process for
informing the competent bodies?
Pursuant
to the Law no. 60, dated 2.6.2016 "On whistleblowing and whistle-blower
protection", as amended, article 5, any person, who becomes aware of
alleged corruption actions or practices in the course of his/her work or
activity in the organisation, shall be entitled to whistleblowing this fact to
the competent unit within the organisation or to HIDAACI ( High Inspectorate of
Declaration and Audit of Assets and Conflict of Interest), as applicable.
Articles
10 and 11 of the Law mentioned, foresees the channels for Whistleblowing. The
law foresees that a competent unit shall be designated within any public
authority having over 80 persons employed and within any private entity having
over 100 persons employed, which shall register, conduct administrative
investigation and examine any whistleblowing pursuant to this law. Also
HIDAACII shall directly investigate the whistleblowing on the alleged
corruption actions or practices in organizations which do not have a competent
unit for this purpose.
From
2017 the Ministry of Justice held the portfolio of the National Coordinator
Against Corruption. In December 2023 the State Minister for Public
Administration and Anti Corruption was established. The National Coordinator is
responsible for designing and implementing the strategic framework against
corruption, as well as conducting administrative investigation of corruption
related denunciations from the general public or businesses. The capacities of
the National Coordinator were further enhanced through the decision of 20
October 2021 "On the establishment, organization and functioning of the
network of anti-corruption coordinators and the structure responsible for anti‑corruption
at the National Anti-Corruption Coordinator", in which, the Council of
Ministers has laid the foundations to create the first General Directorate of
Anti-Corruption, as a unique national structure for coordination of the fight
against corruption, in the direction of three strategic approaches: Prevention
- Awareness - Punishment. This Directorate focuses on all functions previously
performed by the National Anti-Corruption Coordinator, as well as by all
agencies under the Prime Minister that have focused on anti-corruption. This
already empowered directorate will have increased human resources and dedicated
to best fulfil all the functions of the National Anti‑Corruption Coordinator.
The
mission of this body is to carry out the verification (administrative
investigation) of denunciations/complaints about abusive, corrupt or arbitrary
practices for the implementation of legality, including procurement procedures,
as well as the development of projects and programs in the field of
anti-corruption, planning, coordination and determining the necessary
instruments for the implementation of anti-corruption policies. The controlling
activity of this structure focuses on identifying and penalizing corrupt cases.
Public
procurement is a high-risk area for corruption, so the General Anticorruption
Directorate (GPA) has prioritized administrative investigations of public
procurement procedures for institutions that are part of the monitoring
network, but not only. Specifically, the GDA has proceeded on a case by case
with a final investigation report for the institution proposing and taking the
relevant administrative measures, and/or has also filed a criminal complaint
directed or referred to the competent prosecution body in administrative
investigations carried out primarily or based on complaints and denunciations
received from various sources.
According
to law no. 95/2016 "On the organization and functioning of institutions to
fight corruption and organized crime" a special Structure Against
Corruption and Organised Crime (SPAK) is established, which prosecutes and
represents the prosecution on behalf of the state in cases of criminal offenses
against corruption and organized crime. SPAK is the responsible structure for
the prosecution and investigation of criminal offenses of corruption, organized
crime and criminal cases including article 258 of Penal Code on cases of
breaching the equality of participants in public bids.
b._
Furthermore, could Albania please elaborate on how
officials reporting corruption are protected? Does Albania have any protections
for whistleblowers that would apply in this context?
Reporting
of corruption and conflict of interest's cases within the public institutions
is governed under the whistleblower law, concretely Law No. 60/2016 "On
whistleblowing and whistleblower protection".
The
Law no.60 dated 2.6.2016 "On whistleblowing and whistle-blower protection".,
as amended", in the articles 17 – 20, foresees "The right of the
whistleblowers, Protection from retaliation, Investigation procedure for
protection requests, Compensation in the event of retaliation".
The
rights and interests of whistleblowers shall be protected in a reliable,
effective, and adequate way. Whistleblowers shall enjoy the right to
confidentiality during the whistleblowing process, which includes also the
possibility of anonymous whistleblowing of an alleged corruption action or
practice; preservation of confidentiality of the information source of the
whistleblower; protection from retaliation.
The
law provides that a whistleblower, who reports an alleged corruption, shall be
protected from any acts of retaliation action against them by the organisation,
including, dismissal from office; suspension from work or from one or more
duties; transfer within or outside the organisation; demotion; reduction of
salary and/or financial remuneration; loss of status and privileges; denied
promotion; removal of the right to participate in trainings; negative work
performance appraisals; other work-related forms of retaliation.
If
the whistleblower wishes to be placed in another structure of the organisation
in order to protect themselves from hostile reactions in their close work
environment, the organisation shall take reasonable and adequate measures to
facilitate such movement. Otherwise, HIDAACI, upon a request of the
whistleblower, shall address the competent body in accordance with the
effective legislation to order the public authority or shall order the private
entity to take all measures in accordance with this Article. If the competent
body or the private entity fails to take the measures requested by HIDAACI, any
persons concerned shall have the right to address the court.
A
whistleblower, who claims to be subjected to an act of retaliation, shall file
a protection request with the competent unit. The competent unit shall take
immediate measures and shall, in any case, issue a reasoned interim act no
later than ten days from the filing of the request on repairing the illegal
consequences resulting from the retaliation act. Should this timeline not be
observed, the request shall be filed with HIDAACI, which shall take a decision
thereon no later than ten days from the receipt of the request.
HIDAACI
shall investigate the retaliation claims to determine whether there are
reasonable grounds to believe that a retaliation act has occurred, is
occurring, or is expected to occur.
HIDAACI
shall, no later than five days from receiving a request for protection from
retaliation, inform the whistleblower in writing on the registration of the
claim and the name of the person at HIDAACI in charge of the case.
The
organisation, upon a request of HIDAACI, must prove that the measures taken to
the detriment of the whistleblower are based on various grounds and are not
directly or indirectly related to the whistleblowing.
HIDAACI
shall inform the whistleblower in writing no later than ten days from receiving
the request on the status of the administrative investigation, the protection
request, and any procedural action taken. Regardless of the notification
timelines set out in this Article, HIDAACI shall have to respond in writing to
every request for information submitted at any time by the whistleblower
regarding his⁄her request.
The
procedure of administrative investigation on protection requests shall be
completed as soon as possible and, in any case, no later than 60 days from the
date the request is registered.
In
case the administrative investigation concludes that the whistleblower suffered
a retaliation act from the public authority, HIDAACI shall address the
competent body under the effective legislation to order the public authority to
take all measures to repair the violation committed. If the investigation
concludes that the whistleblower suffered a retaliation act from a private
entity, HIDAACI shall order the private entity to take all measures to repair
the violation committed. If the competent body or the private entity fails to
take the measures requested by HIDAACI, in accordance with this paragraph, any
persons concerned or HIDAACI shall have the right to address the court.
HIDAACI
and competent units shall, in line with the HIDAACI instructions, approve
internal rules of procedure on the examination of whistleblowers' requests for
protection from retaliation.
Also,
whistleblowers shall have the right to address the court to demand compensation
for damages suffered from any retaliation act as defined in this law, and as
provided for in the Civil Code
APP
in cooperation with HIDAACI, pursuant to the provisions of Law 162/2020, has
approved Instruction No. 1, dated 21 January 2022 "On the declaration of
Conflict of Interest by Officials/Employees in the procurement process and the
implementation of the contract", which clarifies the procedure followed by
officials engaged in public procurement procedures, in potential cases of
conflict of interest.
6. In response to Question 5.1 on page 19, the paragraph
starting with "Chapter XII", ends with the following sentence:
"Contracting authorities or
entities shall reserve the right to participate in public procurement
procedures to certain organizations for the award of public contracts for
special services, in particular for health, social and cultural services."
a._
Could Albania please clarify what is meant by this
sentence?
The
law162/2020 provides for a special chapter, Public Contracts for social
services and other specific services.
Based
on this provision of the law, a specific decision of Council of Ministers is
approved, Decision No. 768, dated 15 December 2021 "On specifying the
types of social services and other specific services, the types of special
services, for which the right of organizations to participate in public
procurement procedures can be reserved, as well as the detailed rules for their
procurement".
DCM
768/2021 provides for the types of social services and other specific services,
(their list) for which can be reserved the right of Non-Profit Organizations to
participate and provides that in any case the contracting authorities or
entities shall comply with the principles of transparency, equal treatment of
economic operators and the promotion of competition, to ensure compliance with
the obligations laid down in environmental, social, and labor law, and in the
provisions of international agreements and conventions ratified in accordance
with the Constitution.
DCM
determines that contracting authorities/entities reserve the right to
participate in these procedures to certain organizations related to public
contracts, especially social, health and cultural. The NGO must simultaneously
meet several conditions, among which,
−_
its purpose is to
fulfil a public service mission related to the provision of services referred
to as above;
−_
the benefits
generated are reinvested to meet the objectives of the organization, in
accordance with the legislation into force.
−_
the governing or
ownership structures of the organization are based on the principles of
employee ownership and participation or require the active participation of
employees, users or interested parties; and
−_
during the last
three years, the organization is not awarded a contract for the services
defined in this Article by the contracting authority or entity that procures
the contract.
In
any case, the duration of the contract concluded shall not be more than three
years.
6 INFORMATION
7. N/A – No clarification questions at this time.
7 DOMESTIC REVIEW PROCEDURES
8. In reference to the response to Question 7.1, if a
complaint is deemed not submitted, could Albania please advise whether the
payment of the complaint fee is subsequently refunded?
Based
on article 120 of Law No. 162/2020 "On Public Procurement", the
complaining economic operator is obliged to pay the fee to the Public
Procurement Commission.
The
rules and appeal fees are defined in the decision of the Council of Ministers
no. 236, dated 20 April 2023 "On determining the rules and
payment fee for appeals in a procurement procedure at the Public Procurement
Commission".
The
complaint submitted to the contracting authority or entity, as well as the
Public Procurement Commission, according to the provisions of law no. 162/2020,
"On public procurement", from any economic operator, who has or has
had an interest in a procurement procedure and when it is damaged or is at risk
of being damaged by the actions or inactions of the contracting authority or
entity, must include the bank document, which validate the payment of the
relevant fee for the complaint.
For
the review of the complaint, the economic operator is obliged to pay the fee to
the Public Procurement Commission, according to the following definitions:
a)_ When the complaint is submitted for tender documents, 0.4% of the
value of the procurement procedure;
b)_ When the appeal is submitted for the evaluation decision, the final
classification or the candidate selection decision after the pre-qualification
phase, 0.5% of the value of the procurement procedure;
c)_ When the complaint is submitted for the invalidity of the contract,
0.5% of the value of the signed contract.
The
prepayment of the fee by the complaining economic operator or the interested
economic operator is a necessary condition for the acceptance and review of the
complaint. In cases of non‑payment, the contracting authority or entity and the
Public Procurement Commission have the right to reject the complaint submitted
by the complaining economic operator or the interested economic operator.
In
any case, the payment of the fee is refunded to the complaining economic
operator or the interested economic operator, who has appealed the decision of
the authority or the contracting entity, if their complaint has been fully or
partially accepted by the Public Procurement Commission, within five days from
the date of the decision taken by the PPC.
In
case the complaint is not accepted, the appeal fee is 100% transferred to the
state budget.
In
the case when the submission of the complaint to the Public Procurement
Commission and the contracting authority has not been completed, but the
economic operator has paid the complaint fee, this fee will be refunded to the
economic operator who made the payment, in accordance with Chapter VII "Prosperity
without cause", on the Civil Code of the Republic of Albania.
9. In reference to the response in Question 7.2 g., could
Albania please advise if there are any exceptions to the requirement that a
complaining economic operator must pay the fee for a complaint in a procurement
procedure?
In
interpretation to the Law on Public Procurement, we can identify two cases
where they can be considered as an exception to the payment of the appeal fee,
which serve as an instrument of establishing the rights of economic operators,
who have an interest in a procedure procurement. Specifically:
a._
The law provides
for the right to appeal for small value procedures (under ALL 1 million),
without paying any appeal fee.
For
low-value procurement procedures, economic operators have the right to complain
only to the contracting authority or entity within two days from the
announcement of the winner's notice in the electronic procurement system.
Upon
receipt of the submitted complaint, the contracting authority or entity
suspends the continuation of the procurement procedure until the complaint is
fully examined. Within two days of receiving the complaint, the authority or
contracting entity issues a decision on its acceptance or rejection.
In
relation to the decision given by the contracting authority or entity, economic
operators have the right to appeal to the relevant court responsible for
examining administrative disputes.
b._
Also, the law
provides a special instrument for the protection of the rights of interested
economic operators that may be affected by the decision of review bodies
(authority and PPC) in case of complaints from economic operators. Article 113
of the law provides that in cases of appeals against the decisions of the
authority or the contracting entity for the selection of candidates after the
pre-qualification stage or for the process of evaluation of offers, the
economic operators who have participated in the procurement procedure and may
be affected by the appeal presented, have the right to present their arguments
regarding the latter, simultaneously, to the contracting authority or entity
and the Public Procurement Commission, without any fee. This is an instrument
of establishing the rights of economic operators, who have an interest in a
procedure procurement.
The
public procurement law does not provide any difference in fee between domestic
or foreign economic operators.
8 OTHER MATTERS
10. N/A – No clarification questions at this time.
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