Information Accessibility in the Public Procurement Procedure

The reasons for holding the seminars

Access to information right in Serbia has not been exercised properly. Although there are some basic provisions, both in the Constitution and in many laws guaranteeing this right, there are no adequate mechanisms of protecting the rights of those who want to have an access to the information owned by the authorities, public institutions and utilities, and that by their nature are not, nor should be, considered as professional or business secrets.

The lack of adequate regulations on the access of information, contributes to the secrecy of public services, weakens the possibility of controlling the operation of authorities, public institutions and utilities by the MEDIA and the public, and in such a way, it enhances corruption and irrational spending of public funds.

Public Procurement Law made this activity more transparent than is the case with many other spheres of state organs' and utilities' operation. However, since there are many provisions within this Law that have not, so far, been known in the Serbian legal system, a need arose to familiarize the public better with these provisions. In that sense, it is crucial to complete the knowledge and clear all uncertainties of those who are to implement this Law in practice and to ensure transparency of public procurement ACTIVITIES.

In that sense, Transparency Serbia, a branch of Transparency International in our country, has decided to organize, in cooperation with the experts from the Serbian Government's Office of Public Procurement and with the interested local government organs, a series of expert seminars, where the participants would be acquainted with their rights and obligations in the public procurement procedure.

Quite intentionally, a series of seminars has been intended for the managers and officials responsible for public procurement in the utilities. Application of this Law became obligatory for such orderers on 1 January 2003. Many interested orderers find it difficult to obtain correct interpretations of this Law's application, due to the overburdening of state organs.

Place and topic of lectures

The seminars were held in municipal assembly of Niš (11 March), assembly of Kragujevac (18 March) and assembly of Novi Sad (25 March) 2003. The lecturers were Aleksandar Lukia, the personnel training group manager, as well as Svetlana Stojanovic and Danijela Nikolic from the analytical department of the Office of Public Procurement.

The lectures have thematically been divided as to include the following fields:

Open public procurement procedure
Decrees from the public procurement sphere
Public procurement announcement samples
Restrictive procedure
Negotiatory procedure (previously published and not previously published)
Protection of the bidders' rights

The lecturers have, in addition to familiarizing the participants with the content of regulations, particularly pointed for the orderers from utilities, to the observed irregularities in the application of the Law and decrees. Although the Law has been in effect for the majority of the orderers participating in the seminar, since the beginning of the year, the ones not obeying its provisions have still not been penalized. The main reason for that is the fact that the Law has brought ABOUT many innovations and that there are some objective difficulties in applying it, particularly in terms of smaller orderers. For that reason, this entire year can be considered as a trial period during which the orderers are to get adjusted to the new mode of operation, and the weaknesses of certain legal solutions shall be corrected by amendments.

The participants had an opportunity to ask the lecturers some questions, in the final part of each seminar. The representatives from the Office of Public Procurement have answered these questions, trying to give as concrete answers as possible to the concrete questions by orderers' representatives. The questions asked have been similar in all three cities, indicating that the problems are similar. The majority of problems arose from the difficulty of changing the old habits in the public procurement procedure, but the problems arising from insufficient accuracy of the Law wording have been quite frequent as well. There have even been the cases of inadequate interpretations that the orderers could hear in some other meetings with the topic of public procurement.

The conclusions pertaining to the information accessibility in the public procurement procedure

In terms of the accessibility degree of the information the bidders have to provide and the way in which they are to do it, the following important characteristics of the Law are pointed out:

The public procurement plans are not generally published nor is there a legal obligation to do so. The experts from the Office of Public Procurement have discovered that many orderers do not make special plans but only copy those from the previous years. Such a practice does surely not provide the required openness of the procurement-implementing organs and makes it difficult for them to implement public procurement since, as already pointed out, the orderers who do not have good-quality plans are more likely to find the procedure time too long, or not to have enough funds for all the necessary procurements and the like.

Previously issued notice on public procurement as an announcing method is still rarely used in practice, even though in cases when it is published, the procedure is shortened. On the other hand, when a procurement value exceeds 50 million dinars, previously issued notice is obligatory.

Announcing public procurement is obligatory and in such a way, publicity is ensured. The Law specifies that the orderers are obligated to publish the announcements in “The Official Gazette of the Republic of Serbia” and also in one daily newspaper distributed in the whole country. This provision, the aim of which was surely to provide a greater process transparency and to inform a wider circle of interested bidders, presents a great burden for the orderers. Not only is the announcing expensive, but “The Official Gazette” can not guarantee the time of announcement publishing, so the orderers find themselves in an unfavourable situation of determining the deadlines in the announcement without knowing when it will be published and in such a way, without their intention, they can violate the regulations that refer to the bid submission deadlines. Therefore, the participants have welcomed the Office's initiative to change the obligatory announcing in such a way as to have all the procurement announcements on the Republic of Serbia territory, published in a specialized journal that would be published regularly.

The orderers are obligated to make the tender documentation accessible to everybody. The problem of extremely high prices that certain orderers set for obtaining the tender documentation, has particularly been emphasized. Although it is understandable that in this way, the orderers wish to cover the costs of the documentation sometimes prepared by specialized teams, the Law does not allow this to happen. Actually, it is only the copying costs that should be charged, which is the practice in comparative law when it comes to the procedures that ensure access to information.

It is very important, when ensuring a better access to information, to specify the name of the contact person in the public invitation.

Bid opening is public. There is a justified difference between the so-called general public and the authorized bidder representatives. The latter category has the right to comment on the bid opening procedure. Since a public record is kept during bid opening, all present can hear the basic elements of the submitted bids. This measure not only ensures control by the public but also the protection of possibly violated bidders' rights. On the other hand, public does not have the right to participate in the technical evaluation of the submitted bids, nor has it been specified that the information on bids' technical evaluation had to be made accessible. It has been a problem in practice that the orderers do not open the bids imMEDIAtely after the expiry of the bids submission deadline. The representatives of the Office of Public Procurement have pointed out that such a practice is unacceptable and that the bids should be opened imMEDIAtely after the submission deadline expiry. A provision of the Law has been pointed out more than once, specifying that the deadline for the submission of bids is not determined in the way usual in the adjective law, but that only the bids that arrive by the set hour are considered to be on time, no matter when they had been sent by mail. This provision has a very strong anti-corruption effect, because the bidders who send their bids after the others, can with false post stamps and an agreement with some members of the committee, compile a bid in such a way as to make it more favourable than others.

Once the orderer decides which bid he is going to accept, he is obligated to send an announcement to all the bidders. Furthermore, it is the orderers' obligation to announce who they have concluded a contract with. This final obligation is often not observed in practice, which reduces the possibility of public controlling the contract award. The announcements are very brief and they do not state particulars of the accepted bid nor the reasons for its acceptance. At an interested bidder's request, the orderer is obligated to give a detailed announcement. With the purpose of an increased transparency, it should be made possible for the general public to obtain the detailed announcement, at a minimum cost, especially when budget funds are being spent.

In terms of restrictive procedure, i.e. negotiatory procedure, the degree of information accessibility is additionally restricted since it is not obligatory to make this type of procedure accessible to the public. However, it is still obligatory, even in this type of procedure, to announce who has been awarded the contract. The orderer makes the decision whether to allow the public to participate in the first phase of the restrictive procedure.

It is very likely that the deficiencies of the Public Procurement Law present solutions, will be eliminated by way of amendments, and also that the present provisions will be more seriously observed once the Committee for the protection of bidders' rights has been established and the offenders are not tolerated any longer. On the other hand, passing the all-inclusive Access to Information Law, will surely bring ABOUT some new obligations to the orderers regarding the general public's right to be acquainted with the information on the decision-making process in public procurement.

After a series of seminars

The participants' evaluation obtained by analyzing the evaluation questionnaires, was predominantly favourable, in terms of the event organization and the lecture and presentation quality. In many questionnaires, the participants have, in the comment space, expressed their desire to attend more seminars on public procurement, where even more time would be spent for the analysis of concrete problems in the public procurement implementation. Transparency Serbia will do all in its power to meet this need and to organize specialized seminars for the orderers and other participants in the public procurement procedure all around Serbia.

This series of seminars' objective was to provide the necessary information to as many representative participants as possible, so that the problems could be overcome in the public interest. We hope that we have succeeded in doing that. The local MEDIA have had an opportunity to make а record of these seminars' operation and in such a way, they have drawn the public attention to the question of public information accessibility in general and to the questions related to the public procurement implementation. This public, including equally the journalists, civil society representatives and citizens, has a very important role in striving to attain efficient means for a better control of spending from the budget that we all finance.

Transparency Serbia would like to express its gratitude once again, to the officials from the Office of Public Procurement and to the municipal governments of Niš, Kragujevac and Novi Sad, without whose participation, the organization of these seminars would not have been possible. We are sure that we have common goals, and that in the future, there will be many opportunities for cooperation.

ACTIVITIES > accountability programme in the western balkans > accessibility of information in the public procurement procedure - resume of a series of seminars [< backward | forward >]