WILL THE AMENDMENTS TO THE PUBLIC PROCUREMENT ACT SPEED UP THE PROCESS?

The Amending Act to the Public Procurement Act (Amending Act to the PPA, The State Gazette, No 49 of 2018) was published on 18 October 2018. The amendments aim at a step-by-step introduction of the centralized electronic platform for awarding public procurement contracts. The whole process will take place in two stages. As from November 2019, the provisions setting out the beginning of the partial functioning of the platform will become effective and its use will become mandatory for contracting authorities and bidders. The obligation to have an entirely platform-based procedure is wavered only in exceptional cases that are enumerated on an exhaustive list, i.e. where the documentation contains classified information or where the nature of the contract warrants the submission of bids in a format that is incompatible with the platform. With a view to the unhindered and smooth transition to a completely electronic award of contracts, the requirement for the buyer’s profiles of the contracting authorities to be integrated into the centralized platform is postponed until January 2021.

After the system is set into operation, the whole communication between the contracting authorities and the bidders will have to take place exclusively via the platform, where explanations will be requested and given and electronic documents will be exchanged. The contracting authorities will have the obligation to receive and process e-invoices in relation to the fulfillment of public procurement contracts.

The public procurement documentation, bids and contracts will be stored and accessible to the public on the platform for a limited period of time up to five years after the implementation of the relevant contract is completed. Afterwards, the information will be archived and stored for another five years under the terms and conditions applicable to e-government and then it will be destroyed. In other words, unlike other public registers, such as the Companies Register, Bulstat, the Register of Marital Property Relationships and others, the general access to the completed public procurement contracts will be limited in time. This legislative solution is justified with the big volume of information to be uploaded on the platform for each public procurement procedure.

The amendments concerning the reduction of the time limits for the submission of bid in the various procedures became effective as from 1 March 2019. Their objective is to speed up the award process. The time limit for participation in public competitive bidding is reduced to 20 days (generally applicable to all types of public procurement of supply, services or works). Where bids are collected on the basis of a notice, the time limit is ten days (again, applicable to all types of public procurement). The time limit for an open procedure will be 30 days as from 1 November 2019. Contracting authorities have greater flexibility to further reduce these time limits.

Some amendments entered into force on the date of promulgation of the Amending Act to the PPA. They concern also the appeal proceedings before the Commission for Protection of Competition (CPC) and the Supreme Administrative Court (SAC). The new element is the liability for damage caused by the appellant in case of abuse of the right to appeal. The state fees have been increased for the cassation appeals before the SAC to the amount of the fee charged for the appeals filed with the CPC rather than a half of that amount as has been the case so far. The law-makes have made it clear in the explanatory memorandum on the reasons that the amendments are intended to prevent abusive appeals that are filed for the purpose of slowing down the process.

The amendments concerning the value thresholds for the various types of public procurement became effective on 1 March 2019. The minimum thresholds have been increased substantially so that large-scale public procurement could be awarded through simplified procedures. The higher thresholds for works, supply and services are aimed at coming closer to the new EU values which entered into force on 1 January 2018. The change is beneficial to businesses and ensures speedy award of public procurement contracts due to the more limited use of the “heavier” open procedure.

Another novelty is the obligation of contracting authorities to forecast the value estimates in accordance with the real market conditions at the time when the procedure is opened through market studies or consultations. The information on the outcome of consultations should be published in the buyer’s profile, which will ensure accountability and transparency of the procedure. Furthermore, the openness of the implementation is safeguarded with the obligation of contracting authorities to publish not only the contract with the main contractor but also all contracts with subcontractors in the buyer’s profile.

Generally, the amendments aim at speeding up the award of public procurement contracts, while restricting abusive appeals intended to slow down the process. This, however, should not be achieved to the detriment of the lawful conduct of procedures. Digitalization should be the decisive factor in this respect as it is expected to bring about more transparency and document-based accountability and to ensure easier access to public procurement procedures.