Public Procurement Challenges During Covid 19 Pandemic Situation- Albanian Approach

Reida Kashta, General Director, Public Procurement Agency, Albania

Public procurement was one of the areas which was immediately affected by Covid 19 Pandemic and had to face the new reality.

The second day that was decided to lock down the whole country (March 12, 2020), Public Procurement Agency in Albania received a lot of questions, both from Contracting Authorities and Economic Operators on how will proceed with procurement procedures and ongoing contracts, while no one was allowed to step out doors.

Since then, several legal acts and instructions have been issued to switch in to a new mode of operating under pandemic circumstances.

In parallel there are three groups of public procurement provisions applicable:

  • the PPL which applies to ‘standard’ negotiated without prior publication procedure;
  • rules concerning public procurement related to essential interests of the State providing special procedures: competitive procedure and direct award procedure (DCM 203);
  • provisions of the Normative Act no. 14 providing for the negotiated procedure without previous publication.

 

  • First option offered to all stakeholders, which has to buy equipment and drugs to afford Covid 19, was the national Public Procurement Law (hereafter: PPL), which foresees the possibility of using negotiated procedure without prior publication of a contract notice in the Article 33. Paragraph 2/c of the PPL.

  • Second option, used mainly by the Ministry of Health and Social Affair, was DCM 203, which was adopted on the basis of Article 6 of the PPL which stipulates that: “This law shall not apply to the public contracts awarding when their performance should be accompanied by special security measures in accordance with the laws and bylaws in force, or when such a thing is dictated by the substantial state interests.”

Basically, DCM 203 has defined rules governing award of some contracts to which, because of their special character, the PPL is not applicable. Accordingly, provisions of DCM 203 are applicable with regard to contracts which must be awarded due to substantial interests of the State. Before launching of the relevant procurement procedure described in DCM a head of the respective contracting authority should adopt, on a case by case basis, a decision related to circumstances related to the substantial interests of the State and on the necessity of the application of this procedure.

  • Third option considered important to incentive the market, because of the lack of needed supplies, was Normative Act no 14 adopted the by the Council of Ministers on April 11, 2020,  which modified Normative Act no. 3 “On adoption of special management measures during the duration of the period of the infection caused by Covid-19”.

 

Those provisions stipulate that contracting authorities which need goods or services necessary to cope with the situation caused by COVID – 19, may buy those goods and services in the negotiated procedure without previous notice from the market suppliers who propose those goods or services, on particularly advantageous terms (available for a very short time), as regards their prices and times of delivery as compared with standard market conditions. Contracting authorities may negotiate contracts only with economic operators registered on the list maintained by Central Procurement Agency choosing those suppliers who offer needed goods. Central Procurement Agency is obliged to update the list of those suppliers on daily basis taking into consideration those economic operators who express their availability.

Contracting authorities allowed to make use of this instrument will be defined by a decision of the Council of Ministers.

The third option aimed to enhance the centralized purchase as it might be more efficient tool, to manage the fulfillment of the needs to afford the pandemic situation. For this purpose a Decision of Council of Ministers (DoCM) was adopted and in concrete DoCM No. 343, dated 27.04.2020 “On determining the contracting authorities that will conduct negotiated procedures without prior publication of the contract notice for the procurement of goods or services that are necessary for the handling of the situation caused by COVID-19”.

Furthermore, PPA and Ministry of Health and Social Welfare have issued joint Instruction No. 294, dated 06.05.2020 “On determining the list of goods and services for sustaining the situation created by COVID-19 epidemic”.

Pursuant to Normative Act no.14, dated 11.04.2020, to Council of Ministers Decision no.343, dated 27.4.2020, as well as of the Joint Instruction of the Ministry of Health and Social Protection and the Public Procurement Agency no.294, dated 06.05.2020 “On determining the list of goods and services to cope with the situation created by the COVID-19 epidemic”, the Central Purchasing Agency is charged as central purchasing body, for the development of procurement procedures with negotiation without prior announcement, on behalf of the central government contracting authorities (except of health institutions), for some goods and services needed and related to the COVID-19 situation.

Finally, after facing the situation during the first two months of this new reality, PPA issued several recommendations instructing Contracting Authorities to conduct competitive procedures to conclude Framework Agreements. Considering the fact that developments and the curb of Covid 19 were changing day after day, using FA as a tool was the most appropriate approach to ensure the competition and transparency on one hand and to full fill the unexpected needs for Covid 19 situation in real time.