Purchases for Covid-19 Situation, the Albanian Government applies Secrete Contracts, bypassing Participation and Transparency
AIS, an organization promoting Open Data Albania, observes with concern that the Albanian Government has decided, in an anti-constitutional manner, illegally, and without any legitimate need, to consider Secret Contracting and Procedures for purchasing during the emergency created by Covid-19.
- Through two Decisions of Council of Ministers (DCM), namely: DCM No. 203, dated 26.02.2020 “On procedures to be used for signing Contracts dictated by the State Essential Interest” and amendments made by DCM No. 242, dated 22.03.2020 “On some amendments to Decision No. 203”, the Council of Ministers considers procedures and contracting related to Covid-19 as equal to Secret Contracting LINK.
- This DCM is in contradiction with the Constitution. Article 118, paragraph 2 of the Constitution of the Republic of Albania provides that “The Law shall authorize the issuance of secondary legislation, assign a competent body, issues to be regulated, as well as the principles on the basis of which such legislation is issued”. Article 6 of the Public Procurement Law (which the Council of Ministers refers to in issuing this DCM) does not authorize the issuance of any Special Normative Acts for secret contracts, contracts requiring special safeguards, or contracts dictated by the state essential interest. DCM No. 203 does not contain any definition of the situation, circumstances, or cases when “state esential interest” are applicable, but leaves it under the case-by-case discretion of the contracting authorities; In other words, the term “state essential interest” is not legally regulated, and it remains an abstract concept, which is not defined, and which is left up to the subjective decision of the authorities, increasing thus the risk of arbitrariness.
- The above-mentioned Decisions of the Council of Ministers lead to situations, where clients are selected without any published calls for expression of interest, which makes it impossible to identify and look for efficient operators. In this time of crisis, the possibilities for supplies are limited and characterized by dynamic changes. Many are applying innovative forms, in order to enable as fast tracing and identification of the leading suppliers as possible, ensuring supplies in the current situation. Governments cannot trace these suppliers by communicating with one client only, leaving no room for presentation and participation. This approach violates every Principle of Participation and Competition.
- The Government has made an unjustified intervention, as long as the Albanian Legislation (Law No. 9643/2016) regulates already the Negotiation Procedure and Limited Procedure quite well, which could already provide for fast, efficient, and useful purchases, without any need for secret operations. These two procedures, already provided for by the national Legislation, do guarantee the possibility for supplies in situations of emergencies and disasters, guaranteeing Proportionality.
- On the other hand, all the elements of a contract, such as the scope of purchase; process; characteristics and specifications of goods or services to be purchased, would not be subject to any Publication; Transparency; and Accountability for purposes of Ensuring Trust and Public Oversight, given that they are going to be secret.
- Violation of the Principle of Open and Transparent Governance. The Albanian Government is avoiding the principle of Open Government, and this happens at a time when the Reformed Legislation in the Area of Contracting in several European countries, and not only, requires all contracts made in cases of emergency to be fully published as open data. This is to recall that since 2009, Albania is part of the Open Government Partnership, taking a special commitment in the context of Procurement Sector, not yet fulfilled.
- Classification of these contracts (procedures) as secret because of the essential interest of the state falls against even the Normative Act of the Government on Announcement of Situation of Natural Disaster itself, an act which contains no provisions restricting the Constitutional Right to Information (Article 23 of the Constitution).
Our organization considers these acts of the Government as anti-constitutional, illegal, unjustified, and in contradiction with the basic principle of good governance, i.e. Accountability and Transparency. Direct Negotiation (Article 33 of the Procurement Law) and the Request according to the Limited Procedure (Article 31 of the Procurement Law) are sufficient to guarantee fast, efficient, and intelligent Contracting and Procurement, and proportional to the Essential Interests of the People of a State.
AIS joins the Open Contracting Partnership Recommendations for Governance, recommendations for Purchases in the situations created by Covid-19, for Fast, Smart and Transparent Purchases (Open) https://www.open-contracting.org/what-is-open-contracting/covid19/
