Банкеръ Weekly

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PUBLIC PROCUREMENT ACT TO BE REMODELED IN AN EUROPEAN FASHION

The Parliamentary Legal Issues Commission is to discuss the successive attempt for a repair of the Public Procurement Act (PPA), which has become known as the most disputed legislative act, inherited from the 38th National Assembly. The proposed changes will be presented by a team of the Council of Ministers, headed by Plamen Nemchev, Chief of the Public Procurement Department. The amendments have been drafted in cooperation with experts in the sphere of public procurement from the German province Essen, and the project is financed under the European Union's PHARE Programme. The new provisions, drafted last week, are to be approved by the Council of Ministers, and will after that be included on the agenda of the Parliamentary Legal Issues Commission. We expect the National Assembly to approve by the year-end the amendments, proposed by us, Mr. Nemchev said.Several new provisions in the proposed amdendments to the PPA, published in the web-site of the Public Procurement Register, draw the attention. In the first place, it is the idea to set up a Public Procurement Commission as an independent specialized state authority, financed by the budget. It will take over the functions of the minister of public administration and of the specialized team within the structure of the Council of Ministers, which is now maintaing the Public Procurement Register and is updating its INTERNET web-site.Thus, if the changes are approved in their present version, they will cut down the rights of the minister of public administration, after amendments to the Public Adminsitration Act were passed on first reading last week. However, the projected specialized body, financed by the budget, may turn out to be the necessary and so far missing controlling unit for establishing eventual violations in PPA's procedures. The newly drafted provisions also stipulate that the Public Procurement Commission shall be fully entitled to set the State's policies in the sphere of public procurement. It will be exercising direct control on the individual procedures, including recommendations as the procedures are going on, and control after the signing of contracts with a view to establishing possible violations.The members of the Public Procurement Commission will also consider the appeals against the picking out of a certain winner in a tender. Thus, the Public Procurement Commission will become the most important factor for supervising the spending of budget funds under the PPA. The Public Procurement Commission will consist of five members, nominated by National Assembly on the proposal of the Council of Ministers. They will be appointed for a period of five years and may be reelected after this term expires. However, this does not provide the necessary guarantees that the Public Procurement Commission will make objective decisions when considering appeals against procedures, organized by Parliament or by some of the Council of Ministers' structures. And they are among the institutions, spending most funds in tenders under the PPA. Moreover, candidates' complaints are most often directed against them. The Bulgarian Association of Information Technologies (BAIT), for example, included the National Assembly, several ministries, and state agencies, in its list of the most incorrect institutions in the organization of tenders for delivery of computer.The Public Procurement Commission will be a major factor in appeals on the part of candidates in procedures under the PPA if the drafted amendments are approved. It will be accepting their complaints and extending its respective decision within two weeks after receiving the appeals.There will be serious amendments to PPA's article 6, stipulating in which procedures its application is not obligatory. For example, under the proposal of the team headed by Mr. Nemchev, the application of the PPA shall not be mandatory for the delivery of goods, traded on the commodity exchanges. This will create possibilities for a greater transparency of the procedures in the purchase of foodstuffs, medicines, and other products, sold under the Commodity exchnages and Wholesale Markets Act. The possibility for not applying PPA's clauses is preserved also in cases when the executor is the procuring entity at the same time. Currently, this applies only to companies who have to act under the PPA, because they operate in the sphere of transport, telecommunications, infrastructure, or exploit fields of energy sources. The new amendments project that sole traders operating in the above-mentioned sectors shall be included in that group as well. If they are also executors of public procurement, the procuring entity is not obliged to stick to PPA'a clauses. This makes law evasion very easy, because each ministry that organizes a tender in these sectors may set up a firm, to be the procuring entity as well, BAIT's representative for public procurement Yordan Kisyov commented.

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