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Completely new Public Procurement Act entered into force on April 15, 2016

The new Public Procurement Act (PPA) entered into force on April 15th. It does not just amend the current legislation but represents a qualitatively new regulation in the field of public procurements. The main reason for the adoption of a completely new law is to transpose into national legislation two Directives that were adopted by the European Parliament in 2014.

One of the novelties in the law is the change in the approach of definition of the Contracting authorities. They are divided in two main groups – sectoral and public. The distinction has as consequence individual specifics of the order which the Contracting authorities are required to apply.

The new law creates a possibility for Contracting Authorities to award procurements jointly, including with Contracting authorities from other Member states. This possibility was not available in the previous PPA. The rules for the award procedure of joint procurements including several activities with different objects have been settled. After the amendment, Contracting authorities can make the so-called market consultations, i.e. to conduct surveys on the market and on the nature of activities which they intend to award, taking advantage of the services of independent experts.

New legislation has been achieved in terms of the requirements placed on applicants and participants in the procedures. Absolute barriers to the participation in the procedures have been introduced: the presence of monetary obligations to the National Revenue Agency (NRA) or to the municipality, conviction for the participation in criminal organizations, bribery, crimes against the fiscal and financial discipline, crimes against the economy and the property, abuse of child labor and others. As regards the requirements of economic and financial standing and for the technical and professional skills of the participants, the condition that has been introduced is that they comply with the type, the volume and the nature of the procurement in accordance with the constant judicial practice of the Commission for protection of the competition (CPC) and the Supreme Administrative Court (SAC).

The only possible criterion for the evaluation of the offers and the choice of a tenderer for the public procurement is “’most economically advantageous offer” and that is another difference to the previously existing PPA. In that context, even if the evaluation is based only on the price or prices, the most economically advantageous result should again be pursued. Another novelty is the regulation of the so called evaluation, based on the cost-effectiveness made by the examination of the costs throughout the life cycle of the product or the service. Contracting authorities will now be allowed to include as indicator for the assessment – the professional competence of the staff.

An essential part of the law is devoted on the computerization of the process of the award of public procurements. In the first place the introduction of a stage-by-stage unified national electronic and web-based platform is provided which will be used by the Contracting authorities when they award public procurements and which will be administered by the Public Procurement Agency.

As a consequence of the new regulations, the Buyer’s profile has been optimized.  It is a separate electronic space available without any restrictions for everyone. All the information related to the public procurement can be found there – the applied order for the award procedure, the contract and details of its implementation.

The possibility envisaged for the performance guarantee to be presented in a new form can be indicated as a positive change.  Except the currently known forms (money and bank guarantee), the form of insurance that provides coverage through the implementation of the responsibility of the contractor has been introduced.

There are significant innovations in the reasons leading to amendment of concluded contracts for public procurements. The appeal procedures provided in the new law do not differ in principle from the previously existing ones. The introduced changes are aiming the optimization of the appeal proceedings in order to expedite the proceedings and prevent cases of abuse of the right to appeal.

The entry into force and implementation of the new PPA is expected to significantly enhance and improve the functioning of the nationals system for the award procedure of public procurements. Thereby, a higher degree of flexibility and efficiency will be achieved in the management of budgetary funds and the funds in specific areas of public importance.

 

author: Kristina Vezenkova

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