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IAs’ three recommendations for more efficient oversight of public procurement

The Institute alternative has been monitoring the work of parliamentary committees for years, with a special focus on the work of five committees – for economy, finance and budget, human rights and freedoms, anti-corruption, political system, justice and administration, and security and defence.

We summarised our proposals through certain initiatives to improve the work of the committees, such as holding joint thematic sessions, planning control and consultative hearings and appeals for consideration of key reports. Once again, we paid special attention to the Committee for Economy, Finance and Budget and the need for this Committee to exercise more effective oversight over spending on public procurement. In this regard, we also made three specific recommendations:

  1. Consultative hearing on consideration of the annual report of the Ministry of Finance on public procurement
  2. Consultative hearing on consideration of the recommendations of the State Audit Institution for the improvement of the public procurement system
  3. Control hearing of the ministries with the highest annual expenditure on direct contract procurement

Public procurement area is recognised as at high-risk for corruption in Montenegro. Over 2 billion euros are spent on public procurement during the four years (the duration of the mandate of the parliamentary convocation), while their participation in the total GDP of Montenegro amounts to an average of 10% to 15%. These data point to the need for increased parliamentary control of the public procurement system, which, however, is lacking.

The role of the Parliament of Montenegro in the control of public procurement is limited. This practice is largely conditioned by normative decisions that did not recognise the importance of parliamentary consideration of the reports of key institutions that are responsible for the management and control of public procurement procedures, except for the consideration of the reports of the Commission for the Control of Public Procurement Procedures. The Annual Report on Public Procurement of the Ministry of Finance is considered and adopted by the Government, and the same goes for the report on inspection supervision of public procurement. However, although the competencies currently available to the Assembly are limited to a certain extent, the Parliament could exercise better control over public procurement based on them, as well as the control mechanisms defined by the Constitution and the Rules of Procedure of the Assembly.

The Institute alternative, through active monitoring of public procurement, revealed a significant increase in consumption through direct contract, i.e. direct selection of bidders for procurements worth up to 5,000 euros. These procurements are not carried out through the Montenegrin electronic public procurement system (CEJN) and do not enable competition among bidders, which is why they are particularly risky for corruption. During 2021, some ministries and municipalities spent up to 95% of the procurement budget in this way, which requires special attention from the Assembly. With one of the amendments to the Law on Public Procurement adopted by this Committee in December of the previous year, the threshold for this type of procurement was increased from 5,000 to 8,000 euros. On the other hand, the amendment intended to limit the percentage of this type of consumption was not adopted, thus giving the freedom to have more money at their disposal than before. That is why this topic deserves a consultative hearing by representatives of the Ministry of Finance and institutions that use this mechanism the most. In 2021, among the ministries, and according to the findings of the IA, were the Ministry of Foreign Affairs, the Ministry of Capital Investments, the Ministry of Ecology, Spatial Planning and Urbanism, the Ministry of Health and the Ministry of Economic Development. In this way, these ministries procured, among other things, honey, porcelain coffee set, glasses case, shirts, gold cufflinks, belts, suits, etc., but also goods and services that are typically procured on an annual basis through the open procedure – insurance, airline tickets, software maintenance, washing and maintenance of official vehicles and procurement of auto parts and the alike. IA will continue to analyse this part of spending in 2022 as soon as the information about it is available (from March 1st, 2023) and submit it to the EFB Committee for review as material for the hearing.

The State Audit Institution has been controlling the public procurement of institutions for years and points out problems, both individual and systemic, that require a broader consensus on potential solutions. Therefore, their recommendations are a good guide for detecting problems and determining the direction of further regulation of this area, so we consider it important that the Committee organise a special consultative hearing with a focus on considering the SAI’s recommendations related to public procurement, and the degree of implementation of the given recommendations.

The Committee for Economy, Finance and Budget represents the central place for directing activities in this field, therefore we suggest that this Committee organise individual consultative and control hearings on the mentioned topics.

We strive to improve parliamentary oversight of spending on public procurement through the project “Public procurement under the spotlight – Making Watchdogs Work! “, which aims to empower and motivate watchdogs to combat corruption and undue influence in public procurement. The project specifically aims to enhance dialogue on corruption in public procurement and to encourage institutional response to corruption, as well as to influence the debate on public procurement policy and legislation. The project is implemented with the financial support of the Embassy of the Kingdom of the Netherlands in Serbia and Montenegro within the MATRA Rule of Law program.

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Human Resource Management Administration denied access to interviews

Q&A for key state administration positions are still secret

The Human Resources Management Administration (HRMA) refused access to the written records of interviews conducted for key management positions in the state administration, under the pretext that they are not compiled, even though we were previously informed otherwise.

The Institute Alternative requested an insight into the written records of interviews conducted with applicants for positions of heads of bodies and senior management personnel in the period from September 1st through December 31st 2022. We filed the Freedom of Information (FoI) request after the previous acting director of HRMA claimed that these records are kept with the approval of applicants in public competitions, which is in line with our earlier recommendations. Former acting director made such claims during our Forum on the fight against corruption and political clientelism during public sector recruitment, in December 2022.

For years now we have been pointing out that the external oversight of recruitment in the state administration is hampered, since the HRMA did not provide insight into complete copies of tests and interview records, but only to scarce testing reports, which do not present specific questions and answers of candidates during the interviews. That is why we welcomed the decision to implement the practice of making written records as it creates better conditions for the protection of candidates’ rights. Only they can prove unequal treatment and omissions when procedures are challenged through potential appeals and court proceedings.

However, the HRMA rejected our FoI request as unfounded. It claims that it does not have such documentation, despite the contrary sayings of the previous acting director, who publicly said in December 2022 that this novelty had been introduced. At our Forum, in December 2022, former acting director stated that “after each testing of a candidate from the category of senior managerial staff or head of the body, records are kept in the presence of an authorised recorder hired by the court, and where each candidate has the opportunity to dictate and record his answer, and at last, he has the obligation to sign that record, whether he agrees with it or not.”

That’s why, in addition to the appeal to the competent Agency for Personal Data Protection and Free Access to Information, we also requested from the Administrative Inspectorate to control office operations in order to determine whether the HRMA has the requested records. Along with the initiative and appeal, a link with a recorded speech of the former acting director, where he claimed that records do exist, was also submitted. Given that the Administrative Inspectorate did not respond to the initiative sent almost a month ago, on March 15, we turned to this body with urgency to carry out the requested inspection.

We appeal to the current management of the HRMA to ensure full transparency of recruitment procedures in the state administration in accordance with the current legal framework, especially bearing in mind that this area is recognised as particularly risky for undue interference, especially politicisation and corruption. According to the findings of the Institute Alternative, which are presented in detail on the special website https://mapa-rizika.me, the state authorities, for which the HRMA is responsible, fulfil only less than a fifth of the basic prerequisites for reducing undue interference and corruption when planning and implementing recruitment procedures and protection of the rights of candidates.

Milena Muk
Institute Alternative

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Draft amendment to the Law on Free Access to Information introduces unjustified exceptions

We urge that all intelligence and security data not be exempt from the application of the Law on Free Access to Information, as well as that the provisions according to which former public officials are not subject to exceptions to privacy protection and tax secret protection be reinstated.

Draft Law on Free Access to Information established by the Government on March 7, 2023 contains important negative differences compared to the previous draft, which was withdrawn from the parliamentary procedure upon forming of the 43rd Government. Namely, the draft exempts from the application of the Law an information that represents intelligence and security data that is collected, processed, used, exchanged, stored and protected in accordance with the laws that regulate the work of the bodies that make up the intelligence and security sector.

In addition, all persons that had a status of a public official since the introduction of the legally prescribed obligation to submit reports on income and property in connection with the exercise of public office, as well as income, property and conflict of interest of those persons or persons related to them, regardless of whether they are members of a joint household, are exempt from restriction of access to information due to the protection of personal data and the protection of tax secrecy. Previous version of the Law contained this provision which is now replaced in a manner that restrictions to the access to information do not refer only to current public official and persons for whom public officials are due to submit report on income and property.

These provisions can significantly foil some positive novelties in the draft Law, which relate to a greater volume of proactive publishing of information, especially those concerning the budget implementation, the obligation to create a catalogue of authorities – reporting entities to the Law, and a number of other decisions that are product of the efforts of civil society organizations, which submit the largest number of requests for free access to information.

Absolute exemption of the intelligence and security sector data from the application of the Law has no justified basis, especially considering that in the second article, the possibility is left for an authority to restrict access to information or part thereof, “after carrying out the harm test and public interest test, if it is in the interest of security , defence, foreign, monetary and economic policy of Montenegro, which is marked with the appropriate level of secrecy in accordance with the laws regulating the field of data secrecy”.

We also remind the Government that the public debate on the draft amendments to the Law on Free Access to Information, established by the 42nd Government of Zdravko Krivokapić, was held in June 2021, thus, nearly two years ago. In the meantime, the Government did not submit the revised draft for public consultation, and it did not offer an explanation why these important amendments, which the European Commission insists on, were “on hold” for so long, and according to the earlier version of the draft law, their implementation was supposed to start in January 2023. According to the new draft law, its implementation will begin six months after its entry into force, which further extends the deadlines.

For this reason, we urge the Government to abolish important negative differences compared to the previous draft law, which was withdrawn from the parliamentary procedure, and which to a greater extent acknowledged the arguments of NGOs that took part in the previously held public debate.

Stevo Muk
President of the Managing Board of Institute Alternative

Vanja Ćalović Marković
Director of the Network for Affirmation of NGO Sector

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Potentials of Early Integration of Montenegro Into the EU Gender Equality Framework

The European Commission created a revised methodology that provides Montenegro with a window for early or accelerated integration that implies gradual introduction to individual policies of the European Union, European Union markets, and its programmes. This model is accompanied with the provision of increased funding through the Instrument for Pre-Accession Assistance, in order to provide more intensive support in the accession process.

Early integration into the structures of the European Union is currently most visible in areas where we share common challenges, such as the fight against organised crime or border management. However, it is important for citizens that not only problems, but also benefits are the subject of early integration of Montenegro into the EU. Bearing the above in mind, this analysis focuses on the potential of early integration of Montenegro into the institutional framework for gender equality and gender mainstreaming of the European Union, with the aim of mapping institutions and programmes that Montenegro could take part in during the accession process.

In the analysis, we mapped nearly 20 expert and advisory bodies, as well as programmes at the EU level, in which Montenegro can express its interest to participate. For the purposes of this paper, we define early integration as the country’s potential to access the institutions, networks and working groups of the European Union for gender equality in the capacity of an observer or a full member, and to use the existing programmes to the full extent possible, even in the pre-accession period, i.e. before conventional membership.

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Neither a Client, Nor a Patron! For greater resilience to political clientelism and corruption in the area of public sector employment

Public sector employment is a normatively neglected area, which led to the fact that various forms of non-competitive, non-merit-based employment became the rule, rather than the exception. Even in sub-sectors that were subject to greater scrutiny by the European Commission and civil society, the rules are so loose and the conditions so low, that there are no guarantees at all that people who possess the necessary knowledge and skills in the given field would be employed.

The rare exceptions, i.e. cases where we saw fulfilment of basic prerequisites for preventing undue influence, are not sufficient for meaningful progress in this area, which is much needed and which the European Union constantly underlines.

Even if some type of testing exists, there is no obligation to select the best-ranked candidates, which calls into question the appropriateness of the procedures that precede the final decision on recruitment. The obligation to publicly advertise jobs in a public enterprise, public institution and other public services is defined with numerous exceptions, including extension of employment contracts and referral of employees. Given that mandatory duration of the public advertisement is only three days for public institutions, public enterprises and certain agencies, this is definitely not a guarantee of competitiveness.

Read more in our publication, while detailed findings are available at our Map of risks of corruption and undue interference in public sector recruitment, available here.

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WeBER 3.0 has officially begun

Western Balkan Enablers for Reforming Public Administrations – WeBER 3.0 project has begun on 1 February 2023 and will run until 31 July 2026. The Think for Europe – TEN Network (European Policy Institute – EPI Skopje, Institute for Democracy and Mediation – IDM Tirana, Insititute Alternative – IA Podgorica, Group for Legal and Political Studies – GLPS Pristina, Foreign Policy Initiative – FPI Sarajevo) coordinated by the European Policy Centre – CEP Belgrade, and in partnership with the EU-level partner, Centre for Public Administration Research – KDZ from Vienna, will continue to contribute to strengthening of participatory democracy by enabling effective participation of civil society organisations (CSOs) from the Western Balkans (WB) and supporting inclusive citizens’ engagement in monitoring the results of public administration reform (PAR) processes at all levels, in line with the EU requirements (SIGMA/OECD Principles).

WeBER 3.0 will continue to feature the crucial role of civil society in building healthy democracies through empowering CSOs to become reliable partner to governments in the EU accession process. By ensuring continuity in assessment of the progress of the reforms carried out by local civil society actors, WeBER 3.0 and its cornerstone product, the Western Balkan PAR Monitor, will continue to guide the governments in the region towards successful EU accession and membership. CSOs equipped with evidence and knowledge take up central place in the region’s EU path and ensure that the governments do not exercise reform processes to only qualify for the EU membership, but to improve the citizens’ lives.

The project will also contribute to overall regional cooperation by facilitating the CSOs-government dialogue at regional, national and local level, relying on the established WeBER Platform, which will be further enhanced by including the business community representatives.

The main international partners during the WeBER 3.0 will remain SIGMA/OECD and Regional School for Public Administration (ReSPA). Also, the main institutions (ministries/offices) in charge of coordination of PAR in each country will continue to perform the role of the project associates in the third phase of the initiative as well.

The overall objective of the WeBER 3.0 is to to further empower CSOs to contribute to more transparent, open, accountable, citizen-centric, and thus more EU-compliant administrations in the WB region.

The implementation of the third phase of the WeBER initiative is, as has been the case with the previous two (WeBER 2015 – 2018 & WeBER 2.0 2019 – 2023), principally financed by the European Commission.

Find more information on www.par-monitor.org