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30 June 2009
The Council of Ministers has established that all public procurement procedures shall be carried out in electronic form from the end of January 2009.(1) Electronic public procurement has been in use since December 2007, albeit by a limited number of government contracting authorities, mainly of central government. A subsequent amendment to the rule(2) states that the tender procedures for the purchase of electricity and the management, functioning, equipment maintenance and operation of the Thirra tunnel on the Rreshen - Kalimash motorway shall not be subject to the electronic system. According to a Public Procurement Agency instruction,(3) the list of exceptions also includes the tender procedures for small purchases and those that are negotiated without being published.
E-procurement enables economic operators to participate in a tender procedure online - they can then access the agency's official website at the same time. Further, it allows the economic operator to prepare electronically (ie, in portable document format) a considerable set of documents to be submitted by the bidder (eg, certificates evidencing the incorporation of the entity, bylaws, balance sheets and technical documentation). These may be used for different tenders taking place at different times within their validity period (ie, for certificates issued by the public authorities, tenders should be no older than three months). The new system:
The concept of e-procurement, and other related terms, was introduced when Parliament approved the Public Procurement Law (9643/2006) (as amended). This law was drafted in compliance with the EU Directive on the Coordination of Procedures for the Award of Public Works Contracts, Public Supply Contracts and Public Service Contracts (2004/18/EC), due to Albania's obligations under the EU Agreement on Stabilization and Association, ratified by Parliament through Law 9590/2006 and the national plan for the implementation of such agreement, approved by Council of Ministers' Decision 463/2006.
Several definitions are taken from the EU directive and included in the Public Procurement Law, as well as other secondary legislation issued by the Council of Ministers and the Public Procurement Agency. These include, among other things, 'dynamic purchasing system', 'electronic auction' and 'electronic procurement system'.
The dynamic purchasing system is a fully electronic process for making common purchases, the characteristics of which, as they are generally available on the market, meet the requirements of the contracting authority. The system is open to any economic operator that satisfies the selection criteria and has submitted an indicative tender that complies with the specification.(4)
The electronic auction involves an electronic device for the presentation of new prices revised downwards and new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. Certain service contracts and certain works contracts on intellectual performances may not be the object of electronic auctions.(5)
The electronic procurement system is an integrated system used for processing and keeping data (including digital processing), which is transmitted electronically for the purpose of tender procedures.(6)
While the Public Procurement Law requires that communication in public procurement procedures (eg, the submission of documentation, notifications, decisions and other information) be in written form only, it stipulates that in certain cases the contracting authority is entitled to establish the electronic form of communication, in which case the means of electronic communication and its technical characteristics should not be discriminatory and should be available and interactive with information and communication technology already in use.(7)
General provisions are included in Chapter IV of the Public Procurement Law on Electronic Communication in a Tender Procedure. These address the process whereby the contracting authority receives offers and makes a request to participate through electronic means. The electronic signature should be used in the submission of offers and other related documents. The contracting authority is required to avail to the economic operators the information related to the necessary specifications in the submission of offers and requests to participate electronically. Further, the Public Procurement Rules may designate the submission of voluntary accreditation schemes aimed at enhanced levels of certification service provision for the respective devices. Where certain documents do not exist in electronic format (or cannot be submitted electronically), bidders or candidates must submit certificates and declarations before the expiry of the time limit for the submission of tenders or requests to participate.
Further details are set out in the Public Procurement Rules approved by Decision 1/2007 (as amended). The rules require that the contracting authority send the agency an official written copy of the invitation to submit a tender and an electronic copy of the respective tender documents. The agency is responsible for the publication of these documents on its official website. The public should be able to access these documents easily and download them at any time. The use of the documents for the purposes of participating in the tender procedure should be allowed without restrictions. This also applies in cases where amendments are made to the tender documents.(8) Thus, economic operators that download the tender documents may submit their bids in a public procurement procedure without being rejected by the contracting authority for not submitting the documents in hard copy.(9)
The Rules on Electronic Public Procurement Procedures are set out in Decision 659/2007 and a Public Procurement Agency Instruction for the Examination and Evaluation of the Offers in the Electronic Public Procurement Procedure.
Such rules provide that the electronic system be used in a tender procedure either totally or partially (ie, combined with the submission of certain documents in hard copy). The rules address several aspects of the procedure, such as:
In order for an economic operator to participate in an e-procurement, it first must register with the system and obtain a user account. Registration can be made either online through the agency's official website or in the agency's offices where officials can assist. A username and password are given to the economic operator in order to access the electronic system.
The opening of bids is made by the members of the contracting authority-appointed commission. The economic operators are entitled to participate in person, or if that does not happen, they are provided with the minutes.
Before signing the contract, the winning bidder should submit to the contracting authority the administrative and legal documentation in hard copy (either the original or a notarized copy). The authority makes the necessary verifications as to whether the documents submitted electronically conform to those submitted in hard copy.
The e-procurement rules do not apply in appeal cases; bidders should follow the written form in the Public Procurement Law.
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