A roundtable organized by the Public Procurement Administration on the occasion of completion of the public hearing on the Draft Law on Amendments to the Law on Public Procurement was held on March 17, 2014, in Podgorica. In the introductory part the participants were addressed by the Minister of Finance, Head of the Public Procurement Administration, President of the Employers Federation, Secretary General at the Union of Municipalities of Montenegro, as well as the Project Manager for Internal Market and Financial Control at the Delegation of European Union. The roundtable was attended by a large number of bidders, contracting authorities, representatives of NGOs and other stakeholders.
Research Coordinator at Institute Alternative, Jovana Marović, presented our comments to the proposed amendments, referring in greater detail to the provisions related to offense liability, control over the implementation of contracts, the composition of the State Commission for the Control of Public Procurement Procedures, etc. Jovana has particularly pointed out the issue of non-fulfillment of measures aimed at improvement of this area provided by the Action Plan for Chapter 23.
Research paper authored by Jovana Marović, Research Coordinator at Institute Alternative, entitled “Active citizenship as a precondition for the development of democracy in the European Union”, has been published in the Proceedings of Faculty of Political Science “European Citizen in Times of Crisis”, edited by Slobodan Samardžić and Ivana Radić Milosavljević.
The Conference Proceedings consist of 13 works of authors participating in the Conference “European Citizen in Times of Crisis: The Choice between the EU and the Member State as a False Dilemma”, each analyzing, from perspectives of different scientific disciplines, the challenges the contemporary crisis puts in front of the idea of European citizenship and the position of the European citizen.
Draft Law on Amendments to the Law on Public Procurement does not provide jurisdiction for control of implementation of concluded public procurement contracts, does not fulfill the obligations defined in the Action Plan for Chapter 23, does not regulate adequately the important issues in this area, and therefore, requires additional improvements.
Although amendments to the Law on Public Procurement bring some improvements in terms of defining procedures, shortening the deadlines and improving transparency, regulation of important issues was not achieved.
The solution by which the Procurement Officer is a member of the Commission for Opening and Evaluation of Bids is problematic and questionable due to multiple reasons: scope of work; potential bias in decision-making; inability to determine the deputies of particular contracting authorities, nor the decision on submission of the appeal by contracting authority only, or the way of proving compliance with the requirements for participation in the public procurement procedure.
The abolition of authority of the State Commission for the Control of Public Procurement in terms of supervision of public procurement procedures worth more than 500 000 EUR, as well as strengthening the competences of the Administration for Inspection Affairs require for strengthening the capacities of the Administration to be taken as a priority. However, regardless of the extension of jurisdiction of the Administration for Inspection Affairs, the current arrangement does not establish the authority for oversight of implementation of concluded public procurement contracts, which is the main problem in the area of public procurement as suggested by the European Commission. Therefore, the improvement of oversight of the implementation of concluded public procurement contracts is one of the criteria for making progress in the negotiation process within Chapter 23. For this reason, the aforementioned recommendation needs to be implemented as soon as possible.
To an extended list of responsibilities for contracting authorities should be added penal liability for those who do not submit their reports on public procurement in continuity, those who do not submit reports on violations of anti-corruption rules, or those who submit incorrect or incomplete data.
Commentary of Institute Alternative to the Bill on Basic Principles of Intelligence and Security Sector in Montenegro
It is not clear which problems the Government intends to solve by adopting this Law, since the Bill exposition was reduced to mere copying of the articles of the Law, as it happens rather often. The only concrete explanation of the need for the Law to be adopted was contained in the statement of Mr. Dusko Marković, given after the Cabinet meeting during which the Bill had been approved. Mr. Marković said that drafting of the Law was preceded by carrying out an analysis which indicated that the data produced by the intelligence sector “is not fully valorized”. It is necessary to stress that the analysis Mr. Markovic spoke about is not part of the exposition of this Law, nor, to our knowledge, is it available to the Parliament of Montenegro, respectively to the Defense and Security Committee which is mandated to discuss the Bill. Therefore, submission of this document to the competent committee should precede the deliberations in the Parliament.
We believe that the formation of the Bureau for Operational Coordination would be justified if it had been done with the objective of faster and better exchange of information among government authorities in the fight against corruption and organized crime.However, from the job description of the Council and the Bureau, it is not possible to clearly determine the tasks these bodies will be handling in practice. Specifically, the intelligence sharing was mentioned only once in the Bill (Article 5).
The Bill defines tasks of the Council as: “takes care”, “considers …” “provides guidance and conclusions”, “proposes”, “gives an opinion,” etc. The definition of the Council’s competencies given as the following: ”proposes measures regarding the results of the supervision of the work of authorities that make up the intelligence and security sector”, is worrisome. From the competencies defined in such manner it is not clear whom should the Council propose measures to and related to the results of whose supervision, especially bearing in mind that the Council does not exercise supervision according to either this nor the other regulation.
When it comes to the competencies of the Bureau, it is stated that it “cooperates with the ministry responsible for foreign affairs and European integration on issues of importance for the results of the operational coordination.”This raises several questions: Why is it so, if the Minister of Foreign Affairs and European Integration is in the Council? Shouldn’t Council address these issues or should the Bureau, forgoing the Council, establish cooperation with the ministries whose ministers are members of the Council?
It is necessary to regulate by law the obligation to report to the Parliament on the work of the Council and the Bureau. The law should prescribe the types and categories of information that shall be contained in the performance reports that the Bureau and the Council shall submit to the Parliament and to the Defense and Security Committee. Bearing in mind that these are newly established bodies and that the Bill also envisages the obligation of the Council to submit semi-annual reports to the Defense and Security Council, we believe that it is necessary to prescribe the obligation of submission of performance reports to the Parliament of Montenegro as well, on semi-annually basis.
There is no justifiable reason for the work of the Council to always be closed to the public, while there are good reasons for the work of the Bureau to be closed to the public.
The Council is the body tasked with political coordination. Therefore, from its composition should be excluded the representative of the National Security Agency, who is, on the other hand, rightfully part of the Bureau for Operational Coordination. If the proposed solution remains, the National Security Agency would coordinate and submit reports to itself.
We propose to stipulate by law that regular meetings of the Council and the Bureau shall be held at least once a month.
It is necessary to define precisely the bodies that constitute the intelligence and security sector, which is not currently the case. Only one body is clearly defined, while others are defined partially or in general, in relation to the nature of the work they perform. Given that the composition of the Council and the Bureau is determined in relation to specific bodies and their activities, we believe that this should be done in the Article 2, as well.
The legal status of the Council and the Bureau remains ambiguous, because these are neither bodies of the Parliament nor the Government, and they are not administrative authorities either.
It is important to emphasize that the Government was not limited to coordinate the work and cooperation between the institutions of the security sector politically and operationally prior to this Law, either. This Law and its possible implementation can not in any way replace the constitutional competences of the Government and the Defense and Security Council. Furthermore, the Council and the Bureau cannot substitute regular competences of the civil administration of security sector. In the end, the Council and the Bureau cannot be an alibi for individual political accountability of government members.
In the Article 14, paragraph 3, the role of the Defense and Security Council should be deleted because it would thus further endanger the principle of separation of powers between the Government, Parliament and the President, while on the other hand lessen the responsibility of the Government for the work and results of the Bureau. Also, prescribing new responsibilities to the Defense and Security Council would be contrary to the Constitution of Montenegro.
In the Article 12 it is stipulated that “State authorities, ministries and other administrative bodies are obliged to, within their competencies, cooperate with the Council for National Security and implement the Council’s conclusions.” It is necessary to stipulate that the Government ensures the implementation of the Council’s conclusions.
Finally, the title of the Bill is not an expression of its contents. A title that would properly express the content of the proposed text should be amended to read “The Law on Political and Operational Coordination of Intelligence Sector of Montenegro”.
Inspection for public procurement conducted only 84 inspection controls in 2013. Since the key problem in the field of public procurement, according to the European Commission, are irregularities in the implementation of the Law, meaning weak implementation capacities of the competent authorities, it is necessary to create conditions for adequate supervision over the implementation of public procurement procedures as soon as possible.
Even though in November the number of working positions that have been filled in the Department for inspection supervision of public procurement of Administration for Inspection Affairs have increased from one to two, inspectors have conducted fewer inspection controls when compared to the year 2012, when a total of 109 inspection controls have been conducted.
Bearing in mind that the number of parties obliged to adhere to the Law on Public Procurement amounts to 698, it is clear that the capacities of the Administration for Inspection Affairs in relation to the field of public procurement are still limited. Therefore, it is necessary to increase the number of inspectors for one more as soon as possible, especially having in mind that the Administration for Inspection Affairs has 3 systematized working positions for the Department for inspection supervision of public procurement. Additionally, it is necessary to remind that this is one of the responsibilities undertaken by the Action Plan for Chapter 23. Specifically, the Action Plan for the area of the Acquis related to the negotiation chapter 23 – Judiciary and Fundamental Rights emphasizes the need for strengthening the capacities of the competent authorities for supervision over application of awarded contracts through the authorized officers and increase of the number of inspection controls, with the deadline for realization of this envisaged measure set for January 2014.
Strengthening administrative capacities of Inspection for Public Procurement is one of the preconditions for improvement of control in this area, meaning ensuring greater number of inspection controls to be conducted in 2014. Therefore, it needs to be realized as soon as possible.
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It is not clear which problems the Government intends to solve by adopting this Law, since the Bill exposition was reduced to mere copying of the articles of the Law, as it happens rather often. The only concrete explanation of the need for the Law to be adopted was contained in the statement of Mr. Dusko Marković, given after the Cabinet meeting during which the Bill had been approved. Mr. Marković said that drafting of the Law was preceded by carrying out an analysis which indicated that the data produced by the intelligence sector “is not fully valorized”. It is necessary to stress that the analysis Mr. Markovic spoke about is not part of the exposition of this Law, nor, to our knowledge, is it available to the Parliament of Montenegro, respectively to the Defense and Security Committee which is mandated to discuss the Bill. Therefore, submission of this document to the competent committee should precede the deliberations in the Parliament.