A new draft law for the reform of the prosecution system aims to address the problem of transparency and the real lack of competition in tenders by transferring the service to the private sector and trusting more to Artificial Intelligence. Experts and business are skeptical…
Author: Ina Allkanjari
The lack of transparency and shadows that accompany tenders in our country for favors or even predetermination of winners, continues to remain the "Achilles' heel" in terms of public money management. This problem is so real that most tenders with high sensitivity are won with at least 95% of the limit fund, raising serious suspicions of corruption and predetermination of winners.
In order to close this old wound in the public procurement process in the country, the Albanian government has initiated a reform of this system, which is not only expected to be paid, but the government has decided to delegate a large part of the responsibility to artificial intelligence, which is expected to filter requests in tenders.
Currently, the draft law for some amendments to law no. 162, dated 23.12.2020 "On Public Procurement" is expected to be approved by the Council of Ministers.
In the accompanying report of this draft law, it is emphasized that the changes in the current law are the result of alignment with the directives of the European Union.
The Prime Minister's Office, in an official response to ACQJ, has pointed out that the implementation of this law in practice has encountered problems.
"The need for the drafting of this draft law came as a result of the necessity of regulating the legislative framework for public procurement, analyzing the problems arising during the implementation of this law in practice by the contracting authorities, economic operators and auditing bodies, in order to facilitate the procurement process , but also aiming at the further alignment of the law with the EU Directives".
In an analysis of the proposed changes, procurement expert Muharem Cakaj points out the main problem, which is the "violation of equality in tenders" and the winning of contracts with over 90% of the limit fund. Cakaj calls this phenomenon clientelism, which hinders free competition in public procurement.
"The main problem of public procurement today in the Republic of Albania is winning procurement procedures with 99.99% of the limit fund. And not profit from many operators, but from a few. Whom even the fingers of one hand cannot pass. So winning today's procurement procedure with 99.99% of the limit fund is neither less nor more but pure clientelism and killing the competition. Public procurement means public competition", says Çakaj.
This situation has caused the concern of economic operators involved in tenders.
A report published by the Public Procurement Commission shows that in 2022, this institution had a large number of complaints related to public procurement procedures, especially in the bid evaluation phase.
"For the year 2022, a total of 794 complaints were submitted to the Public Procurement Commission, of which: 782 are complaints related to public procurement procedures. Out of 794 complaints, 308 of them or about 39%, are complaints filed for objections on the tender documents and 486 complaints or about 61% of them, are complaints filed for the bid evaluation phase," the report states.
Expert Muharem Çakaj emphasizes the need for further consultations between the government and interest groups in such reforms.
"Public procurement does not only serve the contracting authorities, the other party is the economic operators. Until today, we do not have a big table, accepted by all, between the Albanian government and economic operators."
Procurement service provider
In one of the points of the relationship, the possibility is foreseen for contracting authorities to delegate their responsibilities for procurement to private contractors, including foreign ones.
Arianita Brahaj, head of "Open Data Albania", says that this draft law in some concepts contains partial predictions, which are not sufficient to address the issue as a whole.
"It is often unclear how it will be created or contracted, or a part of the procurement will be moved perhaps to a private, non-public operator, which may be foreign or domestic. How will this be done, how will the licensing be, how will the selection be? Will these costs increase, because these types of Services will be paid. Will these increase costs for taxpayers and those who will be engaged?”
The inclusion of foreign service providers in the Albanian public procurement system, according to Çakaj, shows the failure of public procurement capacities and human resources related to the management of the procurement process.
"This is the main problem in the provisions of the draft, it is determined that the subject of the public procurement service provider can also be foreign. I see this as very problematic. This means that an Albanian contracting authority, if it does not have the necessary capacities, or if it fulfills the criteria that can be applied to a foreign service provider entity, means that it will delegate its right, its legal duty to the provider of service to a foreign subject".
One of the other predictions defined by this proposed draft is the rebuilding of the electronic procurement system, i.e. the creation of a completely new system where new systems will be integrated. But the concern of the experts lies in the fact that this system will be paid.
"This system is planned to be offered for a fee. Contracting authorities, economic operators who will participate in public procurement procedures will pay to access the system, and all other legal entities or private persons interested in obtaining information on the system will also pay to access the system. public procurement involving journalists, non-profit organizations. So this is a step back in terms of transparency", says Çakaj.
The head of Open Data expresses the same concern, raising doubts about the comprehensiveness of this new system.
"Another element that worries us is whether this new system will have all the parameters of participation, i.e. the representation of businesses that want to be part of the process, whether these are small businesses that are not previously public contractors but aim to to become part of the contracting or public procurement process".
The problem of inclusiveness in the public procurement system was evidenced earlier also from the American Chamber of Commerce in Albania, the German Chamber of Commerce, the Italian Chamber of Commerce, Confindustria Albania and the French Chamber of Commerce.
In a joint statement published before the start of the public consultation of this draft law, they unanimously asked the Albanian Government, Parliament and other responsible public agencies to commit to comprehensive economic reforms.
"Increasing the efficiency and reliability of the Public Procurement system, adopting the Open Data Standards of Contracting in procurement processes, eliminating "special exceptions" from the procurement of public funds and giving journalists and civil society more access in the files and data on the procurement process", was one of the reforms proposed by the chambers of commerce.
Implementation of Artificial Intelligence
The focus of the discussions of this draft law is also the implementation of artificial intelligence in public procurement. Arianita Brahaj expresses concern that Albania does not have enough models and technological developments to do this successfully.
"We do not know how these procedures will be carried out and if they are carried out, who will be the entity that has the capacity to do them. On the other hand, who will be the model, practice or broader legislative basis. Because it is not enough for a single law to talk about Artificial Intelligence.”
IT expert, Said Dulevič, calls for more transparency regarding the implementation of artificial intelligence in public procurement and emphasizes that it is important to understand at which stages of the process this technology will be applied.
"I've heard a little bit that it's going to go into government systems, but it seems a bit rushed maybe because there's little information about artificial intelligence. Undoubtedly, the big companies in the world have integrated it, but in sectors that deal with details that do not touch deeply in the analysis or what are things of this level, because here something is set that is big, such as the determination of tenders or something which tomorrow may bring debates, may bring different problems", says the IT expert.
"Artificial intelligence has not been used in public procurement in any country to date, in any European country. It is an innovation, sometimes it is seen with positivity, somewhere it is seen with suspicion. But the implementation of artificial intelligence in the Albanian public procurement law, I personally see it as premature, unnecessary at the moment and problematic with major consequences for either contracting authorities or economic operators", says Çakaj.
The institutions involved in the drafting and implementation of this draft law, such as the Prime Minister's Office, the Ministry of Finance, the Public Procurement Agency, in their responses to Sinjalizo did not provide information about the importance of the inclusion of private-non-public entities in the public procurement process. and the operation of Artificial Intelligence in the development of SPE. It is also unclear whether public consultations have been held and what recommendations have been brought by various actors regarding these changes.
This article was created based on input provided by individuals who have chosen to speak up. Share your story, empower others and be an agent for change. Visit the website: www.acqj.al/sinjalizo-dhe-ti/
