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Reconstruction, about ALL 100 billion are being tendered by clientelistic procedure, the Constitution delays the review of the law on procurement
Written by SOT.COM.AL 3 Dhjetor 2021
The Constitutional Court has not yet decided on the "Open Data" lawsuit, on the law on tenders related to reconstruction. Some time ago, "Open Data" filed a lawsuit in the Constitutional Court, stating that the law on procurement does not guarantee equality, eliminates competition and hits foreign companies. While this lawsuit has not yet been considered by the court, "Open Data" through a notification indicates that the lawsuit was filed in September and the court has not yet reviewed. The announcement states that there are about 100 billion ALL that are being tendered by clientelistic procedure. "The Albanian government avoids and bypasses this law by using special laws for contracting. A typical case are the contracts for the reconstruction after the earthquake, the medium-term program of the state budget, the planning of about 100 billion ALL. Contracting is being done in circumvention of the sectoral legislation according to the normative act law 97/2019. This act, a rule of law, violates the constitutional right to economic freedom, and creates the ground for clientelism and favoritism. The Constitutional Court has been asked with a lawsuit to repeal law 97/2019. "The lawsuit was filed on September 18, 2021, and there is still no date for review against a law of the Albanian government with serious financial consequences", says "Open Data".
The lawsuit in the constitutional
Meanwhile, this agency addressed the Constitutional Court some time ago with a request for partial repeal of the normative act regarding the reconstruction. According to "Open Data", the normative act violates a constitutional right that is that of freedom of economic activity, provided in Article 11 of the Constitution. Thus, according to the agency, violating the freedom for economic activity creates spaces for inequality, clientelism, preferential contracting, favoritism and acts of corruption to the detriment of public funds. “Act no. 9 selects an accelerated procedure and further gives the government the right to determine by DCM no. 199, dated 04.03.2020 type of restricted procurement procedure (two-stage procedure). This does not guarantee bidding, harms the competition of operators, takes the process out of the electronic system and shifts it to the second stage of negotiation at the table where the risk to clientelism is high. The accelerated procedure is applied for a specific sector where the number of operating operators is low. In this case, mainly constructions are being procured (apartments and educational facilities) and the nature of the procurement in relation to the situation of the Albanian market of companies operating in the field of construction is very favorable and the Accelerated and Restricted Procedure are not necessary ", it is said in the lawsuit. Among other things, the lawsuit of "Open Data" states that the act discriminates against foreign businesses. This is because according to the agency, the deadline is too short to submit the documents. Also, the 10-day deadline excludes "de facto" the offers of foreign operators.
Discrimination against economic operators
Meanwhile, in the lawsuit of "Open Data", sent to the Constitutional Court, it is stated that in the normative act there is a discrimination against economic operators. According to the agency, this discrimination is seen between operators who perform expedited procedures as well as those who are selected winners in normal procurement procedures. “The value of the contract security provided in the amount of 5 percent higher in the normative act compared to law no. 9643 and law no. 162/2020, there is a step of regression and discrimination of economic operators that compete and sign accelerated procedures, in relation to economic operators that compete or are selected winners in normal procurement procedures ", it is stated in the lawsuit of" Open Data ".