SIGMA’S REGIONAL PUBLIC PROCUREMENT CONFERENCE 2014

SESSION 2: POLICY MAKING AND REGULATORY DEVELOPMENT FOR PUBLIC PROCUREMENT CHALLENGES AND APPROACHES

Public procurement policy in Republic of Moldova

2

Public procurement system in the Republic of Moldova is undergoing a dynamic improvement and represents the following:

a) a decentralized system in which contracting authorities are responsible for all actions concerning the planning and execution of the contract;

b) its policies are coordinated and promoted by the Ministry of Finance of the Republic of Moldova.

Its legislative basis is the Organic Law, which is implemented by Regulations approved by the Government.

Public procurement policy in Republic of Moldova

2

Being a decentralized system, each actor involved in the initiation, conducting and realization of public procurement has some clearly defined obligations and responsibilities.

Supervision of the public procurement system in the Republic of Moldova is provided by:

Nr. PUBLIC

INSTITUTION ROLE

1. MINISTRY OF

FINANCE

• elaborates policies aimed at increasing the following: - the efficiency of state budget allocations, - the necessity of using foreign investments, - the efficiency of expenditures.

2

Nr. PUBLIC

INSTITUTION ROLE

2.

PUBLIC

PROCUREMENT

AGENCY (PPA)

• implements the state policies in public procurement domain, supervision, control and coordination in public procurement;

• elaborates and submits for approval draft normative acts to amend and supplement the public procurement legislation;

• initiates and supports trainings for contracting authorities stuff involved in organizing, conducting public procurement procedures and awarding public procurement contracts;

• provides methodological assistance for contracting authorities;

• coordinates, monitors, evaluates and controls the way contracting authorities follow the procedures of public procurement and awarding public procurement contracts;

• examines and solves complaints between participants in public procurement procedures

2

Nr. PUBLIC

INSTITUTION ROLE

3. FINANCIAL

INSPECTION

• ensures the protection of public financial interests of the state by exercising, according to the principles of transparency and legality, a centralized financial control regarding the accordance to legislation in force of the operations and transactions related to management of the public national budget resources and public goods.

4. STATE

TREASURY

• coordinates and ensures the process of state budget cash execution;

• provides reports on the execution of the public national budget;

• elaborates methodology of accounting evidence and financial reports in the budgetary system;

• registers public procurement contracts registered at the Public Procurement Agency.

2

Nr. PUBLIC

INSTITUTION ROLE

5. COURT OF

ACCOUNTS

• exercises control over formation, administration and

usage of public funds and public property

management by conducting external audit in the

public sector.

SESSION 6: CENTRAL PUBLIC PROCUREMENT FUNCTIONS: IDENTIFICATION, COMBINATION, SEPARATION, CONFLICTS OF INTEREST, CHECKS AND BALANCES

Interaction of institutions involved in the process of public procurement

2

MINISTRY OF FINANCE – develops policies.

PPA – implement policies and submit for approval and coordination draft normative acts.

FINANCIAL INSPECTION – verifies and monitors the execution of public procurement contracts.

PPA – requires verification and monitoring of public procurement contracts’ execution.

STATE TREASURY – provides a breakdown of financial resources intended for the execution of public procurement contracts through the treasury system of the state budget.

PPA – examines and registers public procurement contracts concluded as a

result of procurement procedures.

Identification of functions

2

In the public procurement system of the Republic of Moldova the most important functions are the following:

1. implementation of state policy on public procurement;

2. coordination and monitoring, evaluation and control of the way how contracting authorities are following the procedures of public procurement and awarding public procurement contracts;

3. examination and registration of public procurement contracts;

4. management of Automated Information System "State Register of Public Procurement";

5. publishing of Public Procurement Bulletin;

6. examination and settlement of disputes between participants in public procurement procedures.

Identification of functions

2

In the activity of Public Procurement Agency can be identified the following conflict of interests:

From the moment of registration of public procurement contracts by the Public Procurement Agency, contracts produce legal effects. In case there is a complaint concerning the decision of contract registration, the Agency is also the authorized entity to settle the emerged disputes.

For this purpose, there has been elaborated a draft law amendment to the Law on Public Procurement about establishment of a Complaints Settlement Agency.

SESSION 7: SETTING UP A REMEDIES SYSTEM: BUSINESS REASONS, REGULATORY REQUIREMENTS AND GOOD PRACTICE

Key elements of remediation in Republic of Moldova

2

ECONOMIC OPERATOR

Supplier of goods, contractor of works and/or service provider, which can be any individual or legal entity, i. e. any public entity or group of such persons and/or entities providing the goods, executing works and/or providing services. 2

CONTRACTING AUTHORITY

Authorities of public administration, public individuals, and associations of such authorities or individuals.

2

PPA

Specialized administrative authority under the Ministry of Finance, which performs state regulation, supervision, control and intersectoral coordination of public procurement.

2

THE COURT

A body for settlement of disputed claims, which aims at counteracting the abuses and excesses of power by public authorities, defending the individual rights within the law, ordering public authorities activity, ensuring the law order.

Right to submit a complaint

2

Any individual or legal entity, who considers himself harmed in some of his rights provided by the public procurement law, has the right to submit a complaint.

Depending on the contested documents, the types of complaints can be the following:

• Complaints against tender documents/invitation to tender;

• Complaints on procedures;

• Complaints against the results of awarding procedure.

Stages of complaint examination

2

1. Preliminary examination of the complaint in order to determine the correspondence of obligatory elements required by the law.

2. Notification of contracting authority and all economic operators involved in procurement procedure about the existence of a complaint.

3. Request of a presentation exposing the point of view of contracting authority regarding the claims submitted in the complaint.

4. If appropriate, initiating the procedure of amicable settlement of the complaint.

5. Examination of complaint based on explanations submitted by the contracting authority and documents related to the complained procedure.

6. If appropriate, conducting working meetings with complainants and contracting authority aimed at examining complex complaints, in which cannot be identified clearly the emerged dispute.

7. Issuance of the decision concerning the complaint examination.

Deadline for submission of complaint is 10 days from the date when an action is notified that is considered to serve as basis for the complaint.

Number of complaints submitted during years 2012-2013

2

Nr. Subject of complaints 2013 2012

1 Regarding the results of procedures 789 612

2 Regarding the course of the procedure 73 75

3 Regarding the invitation to tender or tender documents 317 228

TOTAL: 1179 915

Number of complaints submitted during years 2012-2013

2

Nr. Procedures/Complaints 2013 2012

1 Announced procedures 8 985 6 266

2 Complaints submitted 1 179 915

SESSION 8: CURRENT PRACTICES IN COMPLAINTS REVIEW: EXAMPLES FROM THE REGION AND THE EU

Complaints review

2

At the current stage within the Public Procurement Agency examination of complaints is performed by qualified specialists in jurisprudence from the Direction of Regulation and Control.

In case of establishment of the Complaints Settlement Agency experts and specialists in jurisprudence, economy and technical domain will be involved.

In the process of complaints examination the Agency may undertake the following measures:

Complaints review

2

1. Preliminary examination of the complaint in order to determine the correspondence of obligatory elements required by the law.

2. Notification of contracting authority and all economic operators involved in procurement procedure about the existence of a complaint.

3. Request of a presentation exposing the point of view of contracting authority regarding the claims submitted in the complaint.

4. If appropriate, initiating the procedure of amicable settlement of the complaint.

5. Examination of complaint based on explanations submitted by the contracting authority and documents related to the complained procedure.

6. If appropriate, conducting working meetings with complainants and contracting authority aimed at examining complex complaints, in which cannot be identified clearly the emerged dispute.

7. Issuance of the decision concerning the complaint examination.

Deadline for submission of complaint is 10 days from the date when an action is notified that is considered to serve as basis for the complaint.

Complaints review

2

APPEALS AGAINST COMPLAINT SOLVING DECISION ISSUED BY THE PUBLIC PROCUREMENT AGENCY:

Any individual or legal entity may appeal against any administrative act issued by the Public Procurement Agency in order to settle the disputed claim within 30 since the date of communication in cases when:

• it was not issued within the time fixed by law - within 20 days since the complaint’s submission;

• it is not satisfied with the decision issued by the Agency.

Number of complaint solving decisions appealed to court in the year 2013

2

Efficiency of complaints solving system

2

• Public Procurement Agency decisions have binding effect and are executed immediately.

• Public Procurement Agency decision may be suspended only by the court.

• The complained procurement procedure is not registered until the Public Procurement Agency issues a decision on the submitted claims. This assumes stopping a procedure’s fraud, because functions of registering, solving and establishing legal force correctness of the contract are attributed to this institution.

• It also implies a conflict of interest, because the Public Procurement Agency cannot repeatedly expose on a previously issued decision.

SESSION 9: CURRENT PRIORITIES AND COMING ACTIVITIES IN THE NEIGHBOURHOOD EAST: REFORM AMBITIONS FOR 2014 AND BEYOND

Priorities for year 2014 In domain of public procurement

2

Nr OBJECTIVE ACTIONS

1. CAPACITY BUILDING

1.1. Elaboration of complex reports on public procurement activity.

1.2. Establishment of training plan for actors involved in public procurement procedures.

1.3. Training for representatives of contracting authorities responsible for conducting public procurement procedures.

1.4. Periodic trainings for users of Automated Information System "State Register of Public Procurement" on new features and optimizations of the system.

1.5. Periodic trainings for new users of Automated Information System "State Register of Public Procurement".

1.6. Establishment of the Help Desk of PPA with the external donors support.

Priorities for year 2014 In domain of public procurement

2

Nr OBJECTIVE ACTIONS

2.

HARMONIZATION OF NATIONAL LAWS AND REGULATIONS TO COMMUNITY ACQUIS

2.1. Finalization and adjustment of the draft Law regarding the award of public procurement sectorial contracts

2.2. Elaboration of the draft Regulations on the organization and functioning of the National Complaints Settlement Agency.

2.3. Adjustment of the normative framework of public procurement domain.

3. TRANSPARENCY IN PUBLIC PROCUREMENT DOMAIN

3.1. Ensuring the elaboration and automated publication of contracting authorities'’ notices of intent.

3.2. Publishing examination phases of documents submitted by contracting authorities.

3.3. Publishing examination phases of complaints submitted by economic operators and other requests received from contracting authorities and economic operators.

Priorities for year 2014 In domain of public procurement

2

Nr OBJECTIVE ACTIONS

4.

PREVENTING CORRUPTION IN PUBLIC PROCUREMENT DOMAIN

4.1. Determination of corruption phenomenon perception in public procurement domain.

4.2. Ensuring compliance of transparency in decision-making process of Public Procurement Agency.

5.

AUTOMATING THE PUBLIC PROCUREMENT SYSTEM AND DEVELOPMENT OF STATISTICAL CAPACITIES

5.1. External assessment of AIS "SRPP”.

5.2. Continuation of implementing Public Procurement Contracts Management Module.

5.3. Continuation of testing the first stage of electronic procurement system at approximately 300 contracting authorities.

5.4. Modification and approval by the Agency of User’s Manual on e-Procurement.

Priorities for year 2014 In domain of public procurement

2

Nr OBJECTIVE ACTIONS

6. EFFICIENT PLANNING OF 2014 STATE BUDGET ALLOCATIONS OF PPA

6.1. Establishment of statements of expenditure, financing plans for year 2014 considering the draft budget law indicators.

7.

ENSURING AND FINANCIAL REPORTING OF UNIFIED POLICY IN ACCOUNTING DOMAIN

7.1. Observance of normative acts provided by accounting law and accounting standards.

7.2. Reporting and presentation of financial reports on time, in accordance with regulations provided by the accounting law and accounting standards.

8. IMPROVING FINANCIAL MANAGEMENT SYSTEM

8.1. Identification of financial resources for conducting training seminars.

8.2. Exercising a permanent and demanding control over the performance of obligations and duties of employees within the Public Procurement Agency.

8.3. Conducting internal audits missions.

Priorities for year 2014 In domain of public procurement

2

Nr OBJECTIVE ACTIONS

9.

ENSURING IMPLEMENTATION OF REGULATORY FRAMEWORK FOR MANAGEMENT OF PUBLIC FUNCTION AND PUBLIC OFFICIALS

9.1. Participation in training courses.

9.2. Introduction of information about the Public Procurement Agency staff in AIS "Registry of public functions and public officials”.

9.3. Ensuring data records and documents relating to personnel (personal files, work books, register books).

THANK YOU FOR YOUR ATTENTION