The organization AIS expresses its regret and would like to let you know that it has made an appeal against the Decision of the State Commissioner for Elections no. 457, dated 01.10.2021, through which the Commissioner refuses to review of the denunciation made by AIS/OpenDataAlbania Report on 31 May 2021. The parties denounced for having mismanaged the public funds are the Council of Ministers and the Municipality of Durrës.

Our denunciation dated 31 May provides arguments on the Misuse of Public Assets and Funds for electoral purposes, by the Council of Ministers and the Municipality of Durrës during the Electoral process April 25, 2021. http://ais.al/new/wp-content/uploads/ Call-CEC-Final-in-two-languages-1-this1.pdf

The Commissioner, by Decision dated 1 October, has decided to declare the review of the Claims submitted as beyond its competences. Link: http://ais.al/new/wp-content/uploads/Vendim-457_211001_Vendim-ndaj-Keshillit-te-Ministrave-Keshilli-Bashkiak.pdf

Considering this decision of the Commissioner unfounded in law and evidence, as well as contrary to the current practice developed by the Commission of Sanctions and Complaints (CSC), AIS filed on October 28th, its appeal by addressing the CSC. Link: http://ais.al/new/wp-content/uploads/ANKIMI-KAS-AIS_English.pdf

The complaint states that the Commissioner’s Decision should be Repealed because:

1. There are Violations of the Due Legal Process during the Administrative Procedure.
2. The foundation of AIS Request remained unanswered.

AIS (http://ais.al/new/en/?s=election ), as the author of the Denunciation, demanded asked the Complaint and Sanctions Commission to Repeal Decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and Return the case for review to the Commissioner. Also Pursuant to Article 137 and/or Article 138 of the Code of Administrative Procedures, amendment of decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and conduct of additional administrative investigation into the denunciation of AIS by the Complaints and Sanctions Commission and introduction of legal measures upon its conclusion.

The Complaint Review Session will be held by the CSC, on Monday, November 8 at 11 o’clock.

Some details on the administrative irregularities of the Commissioner’s Decision are set out below:

1. Having no response from the Municipality of Durrës and the Council of Ministers and considering the requested information important for the administrative investigation, the Commissioner, by its decision no. 439, dated 02.08.2021, has decided to extend the term of the administrative review of the denunciation for violations provided for by the Electoral Code and decision no. 9, dated 24.12.2020 of the CEC Regulatory Commission on the Council of Ministers and the Durrës Municipal Council. LINK:  http://ais.al/new/wp-content/uploads/CEC-Decision-439_English.pdf
2. Even after the extension of the term of the administrative review, the Commissioner has administered on 02.08.2021 only the response of the Municipality of Durrës by Mrs. Emeriana Sako, who performs the functions of the Mayor of Durrës.
3. The Council of Ministers did not respond to the Commissioner and the latter did not request a response from them, and has not imposed any punitive measures for non-cooperation with the CEC as required by Article 169 of the Electoral Code[1].
4. AIS: was not informed and did not have the opportunity to comment on any material / response submitted by the Municipality of Durrës.
5. The Council of Ministers has not commented on this denunciation twice, it has not offered cooperation with the Commissioner and is not administratively punished for its position.
6. In the process of making the final decision, AIS as the complainant was not given the opportunity provided by the Code of Administrative Procedures, Article 93, to finally express its claims. As the complaining subject, AIS shows a legitimate interest in this proceeding, because it is the party that made the denunciation and should have been called as an interested party in the administrative proceeding followed by the Commissioner.
7. By Decision dated October 1, the Commissioner Decided to consider the review of the Claims submitted outside its jurisdiction, leaving AIS Denunciation against the Council of Ministers and the Municipality of Durrës for Misuse of Public Funds in the Election Campaign of April 25 without a thorough investigation.

AIS , as the author of the Denunciation, demanded asked the Complaint and Sanctions Commission to Repeal Decision no. 457, dated 01.10.2021 of the State Commissioner for Elections, and Return the case for review to the Commissioner. Also Pursuant to Article 137 and/or Article 138 of the Code of Administrative Procedures, amendment of the decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and conduct of the additional administrative investigation into the denunciation of AIS by the Complaints and Sanctions Commission and introduction of legal measures upon its conclusion.

The hearing in the CSC was held on 8 November. The Complaints and Sanctions Commission (CSC) accepted our Request for changes to be made to the Decision of the State Commissioner regarding its lack of competence, but rejected the allegations of irregularities in the acts of the Council of Ministers and the Municipality of Durrës, i.e. the acts that made it possible to pay Individual grants a few hours before the Voting day. The text of the CSC Notice is as follows

The Complaints and Sanctions Commission reviewed today (November 8th) appeal no. 74, challenging decision no. 457, dated 01.10.2021, of the State Election Commissioner, a complaint by the organization Albanian Institute of Sciences (AIS).
The Albanian Institute of Sciences has challenged the acts of the Council of Ministers and those of the municipality of Durrës regarding the funds they have allocated to the subjects affected by the earthquake. The State Election Commissioner had claimed lack of competence over this complaint.
Having heard the appellant and having reviewed the documentation, the CSC found that its review is the competence of the CEC bodies, so by a majority of votes, it decided to accept the request to amend decision no. 457, dated 01.10.2021 of the State Election Commissioner, whereby the latter had declared itself not competent for reviewing the complainant’s claim.
At the end of the administrative investigation, the CSC concluded that the acts challenged by the Albanian Institute of Sciences do not constitute a violation of decision no. 9 dated 24.12.2020 of the Regulatory Commission (reformer), because such decisions do not propose, approve, or allocate any new funds, but simply set executive procedures, so by a majority vote it decided to reject the request for an administrative sanction to be imposed for violation of decision no. 9, dated 24.12.2020 of the CEC Regulatory Commission.

This Decision can be challenged in the Administrative Court within 30 days from its Disclosure on the CEC Website.

[1] Article 169 of the Electoral Code provides that: “Refusal to cooperate with the CEC or to provide information provided by this Code to the CEC, by officials of local or central government bodies, is punishable by a fine of 10 thousand to 50 thousand ALL.”

Please find below an update on Albania’s situation with Covid-19, for the week 18.10.2021- 24.10.2021, which AIS / Open Data Albania is providing. Find Data and Charts on Covid-19 updated on a daily basis at https://open.data.al/covid-19/

As per the last public statement, the number of Vaccinated in the country is:

–           Complete vaccination with 2 doses 871 496 Persons

–           Vaccination with the First Dose 994 446 Persons

–           In Percentage, it results that 30.79 % of the Population is Fully Vaccinated.

–           In Percentage, it results that 36.89 % of the Population above 15 years is Fully Vaccinated.

The Albanian state has so far applied Vaccination with AstraZeneca; Pfizer BioNTech; Sinovac CoronaVac; Gamaleya – Sputnik V. (Linked all documents of our Government for Vaccine Administration https://openprocurement.al/en/htender/covid/title/KONTRAKTIME%20VAKSINIM%20COV-2?   )

Indicators as of October 24^th, 2021, Infections, Hospitalizations and Fatalities:

–           New Cases for 18^th – 24^th October  3 725

–           People Testes 18^th – 24^th October  23 955

–           Number of Fatalities for last week, 18^th – 24^th October – 54 (Increase from same week 18^th – 24^th October of prior year.)

–           Number of active cases on 24^th October 2021 – 7 032

–           Hospitalization 24^th October 2021 – 164 (Reduction from same day 24^th October of prior year.)

–           Total Number of Fatalities 2 874

–           Total Number of Infected People 181 696

–           Number of recovered patients (18^th – 24^th October) 2 907

–           Infected Number / Tested Number for 18^th – 24^th October – 15.5%  (Increase from prior week)

–           Fatalities/Infected Ratio for 18^th – 24^th October – 1.45% (Reduction as prior week)

–           Hospitalized /Active cases as per 24^th October 2021 – 2.33% (Reduction from prior week)

–           Total Population of Albania 2 829 741.

–           Population above 15 years 2 362 375.

The same week, 18^th – 24^th October, last year (18^th – 24^th October, 2020) there were: 23 deaths, comparing to that for the same week we have 31 more deaths in 2021. (This year we have an increase from same week prior year)

A total of 973 new cases and 5886 tests for (18^th – 24^th October, 2020). (This year we have an increase from same week prior year)

Active on the 24^th October were 5312 people (18^th – 24^th October, 2020). (This year we have an increase from same week prior year)

186 people were hospitalized on the 24^th October 2020.  (This year we have a reduction from same day prior year)

Fatalities/Infected Ratio for 18^th – 24^th October 2020= 24/1114*100=2.36% (This year we have a reduction from same week prior year)

We see that there is generally an ascending trend from last year.

In the portal created by AIS https://open.data.al/covid-19/ the data for Covid -19 are being updated daily. You will receive a weekly update on Covid 19, Vaccinations, Infections, Hospitalizations, and Fatalities in the coming weeks.

AIS databases, #Information, #Transparency, and #Accountability

–           Open Procurement Albania all Covid-19 Contracting https://openprocurement.al/sq/htender/covid

–           Open Data Albania #FollowTheMoney https://ndiqparate.al/en/10789-2/

–           Open Spending Albania https://spending.data.al/en

–           Open Corporates Albania https://opencorporates.al/

StaySafe!!!

AIS organization, known as Open Data Albania, has filed a lawsuit with the Constitutional Court, demanding partial abrogation of a Normative Act, which has the power of the law, namely Act no. 9, dated 16.12.2019 “On coping with the consequences of natural disasters”, approved by the Assembly of Albania by law no. 97, dated 18.12.2019, specifically the repeal of Chapter VI, Public Procurement Procedures, Articles 40 – 44, and Article 4, point 7 and point 9.

This Normative Act, which has the power of law, in the opinion and reasoning of our Organization, in its section on Procurement for coping with the consequences of natural disaster after the Earthquake of November 26th, 2019, violates the constitutional right of freedom of economic activity, provided in Article 11 of the Constitution.

Violating the Freedom of Economic Activity, it leaves room for inequality, clientelism, preferential contracting, favoritism, and Corruption to the detriment of Public Funds.

This Normative Act has established by Law the Type of Procedure, Deadlines for Participation, Deadlines for Appeal and Evaluation, bypassing the National Legislation on Public Procurement and restricting the right to competition and equality.

The interested parties in this Lawsuit include the Assembly and the Council of Ministers.

Some of the elements, where Act no. 9, which has the power of law, discriminates against economic freedom and public interest for efficient use of Public Money:

• It sets a Procedure where Competition is Not Guaranteed. Act no. 9 opts for an Accelerated Procedure and gives the Government the right to determine by Decision of Council of Ministers no. 199, dated 04.03.2020 a Restricted Procurement Procedure (two-stage procedure). This does not guarantee bidding, undermines the competition of operators, removes the process from the electronic system, and takes it to the second stage of negotiation at the table where the risk of clientelism is high. The Accelerated Procedure applies to a specific sector, where the number of operating operators is low. In this case, it is mainly construction works which are being procured (apartments and educational facilities) in this manner. The nature of this procurement in the context of the Albanian market of companies operating in the field of construction is very favorable and Accelerated and Restricted Procedures are not necessary.
• Restrictive deadlines for Submission of Documentation by economic operators, in the part of the Law that we seek to repeal. The deadline of only 10 days has drastically limited competition, as it is almost impossible to prepare a large set of documents and technical Bill of Quantities for a period of 10 days.
• Foreign Businesses are discriminated against. The 10-day deadline also excludes “de facto” offers from foreign operators. It is worth mentioning here that a foreign operator has the obligation to submit official documentation with an apostille stamp.
• The non-serious deadline of only 2 days for Complaining against the criteria of the procurement procedure, set by the Normative Act no. 9, is extremely restrictive for economic operators, who may claim unlawfulness of the qualification criteria. We clarify the fact that it is precisely the qualification criteria that create premises/incentives or make it impossible for operators to participate in a procurement procedure.
• On the other hand, the 3-day deadline for complaints to be handled by the Public Procurement Commission is completely non-objective. Law no. 9643 sets a deadline of 15 days for handling complaints, while Law no. 162/2020, sets a deadline of 30 days.
• Here too, the Legislator has shortened the deadlines for the evaluation of bids by 5 days. Considering that procurement procedures conducted based on normative act no. 9 are mainly procedures above the upper monetary threshold, and have a volume of documentation, it is clear that the 10-day deadline for bid evaluation puts in serious difficulty the quality of evaluation and the possibility of objective verification of all documentation submitted by bidders.
• Even in the value of contract insurance which is provided at 5% higher in the Normative Act compared to Law no. 9643 and law no. 162/2020, there is a step back and discrimination against economic operators that compete and sign accelerated procedures versus economic operators that compete or are selected winners in regular procurement procedures.

AIS files its lawsuit claiming suspension and abrogation of this Normative Act, which has the power of law, specifically concerning its part on Procurement, because its consequences affect the interests of the state, society, and individuals.

The contracting authorities would have no consequences from such suspension and repeal requested of the Constitutional Court (Suspension and Repeal), as the Reconstruction Fund can be still tendered through Law no. 162/2020 “On public procurement”, entered into force on 31 March 2021, as an organic law that fully regulates the field of public procurement, drafted in line with the directives of the EU legislation on procurement, which provides solutions for any situations, whether emergency or regular situations, that a contracting authority might face.

The organization has monitored All Contracts Related to the Post-Earthquake Reconstruction Program of November 26^th, 2019. So far, 33.14 billion Lekë have been tendered for 337 contracts with 192 Unions of Operators. Click to get acquainted with the list of contracts and contractors.

AIS, known as Open Data Albania, is registered as a legal entity – non-profit organization – by decision of Tirana Judicial District Court no. 3048, dated 28.03.2011.

The organization is implementing Projects related to Expenditures, Procurement, Public Contracting, Good Governance and Anti-Corruption Issues, some of which are as follows:

• OpenData, Access and Transparency for Sectors Exposed to Corruption and at Risk of Corruption.
• OpenContractingAlbania Risk Assessment & RedFlag
• Public Contracts in States of Natural Disasters, Strengthening Independent Monitoring Mechanisms

AIS has established database systems for tendering and Contracting as Open Procurement Albania http://openprocurement.al/, contract monitoring system State Reconstruction Program http://openprocurement.al/en/tender/rindertimi
Risk assessment system (automatically) in tendering http://openprocurement.al/en/index/redflag
Database for monitoring Public Expenditure and Integrity of Elected and High Level Appointed Public Officials http://spending.data.al/

The lawsuit filed in the Constitutional Court can be found on the website of Followthemoney.Al