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Ana Durnic, Montenegro, third regional conference on public procurement for ENP East countries, Tbilisi, 6 November 2019


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Presentation by Ana Durnic, Institute Alternative, Montenegro, on the role of civil society in monitoring the implementation of procurement rules, at the third regional conference on public procurement for ENP East countries, Tbilisi, 6-7 November 2019.

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Ana Durnic, Montenegro, third regional conference on public procurement for ENP East countries, Tbilisi, 6 November 2019

  1. 1. © OECD 3rd regional conference on public procurement for ENP East countries The role of civil society in monitoring the implementation of procurement rules Ana Đurnić, Institute Alternative, Montenegro Tbilisi, 6-7 November 2019
  2. 2. Basic facts on PP in MNE • Six years since Montenegro opened EU negotiations within the Chapter 5 – Public Procurement • Eight years since the adoption of the Law on Public Procurement • New Proposal to the Law on Public Procurement in procedure • Negotiations – a continuous process of back and forth with no major breakthrough 1
  3. 3. The Vicious Circle of Amending the Law and Monitoring its Implementation • The Law on Public Procurement currently in force was originally adopted in 2011 and has been amended three times since • Significant positive amendments adopted in 2014, with some more space for improvement in terms of regulation and even more so regarding implementation 2
  4. 4. 2015: Corruption Within the Law 3 • public procurement data is either (a) not made available at all, (b) not sufficiently credible when made available, or (c) presented poorly • poor implementation of legal provisions is widening the vulnerability to corruption • persons representing the contracting authorities in procurement are not called to account; • system enables for covering these practices and presenting them as being within the scope of the law
  5. 5. 2015 EC Report • “Good progress was achieved with the adoption of amendments to the public procurement law at the end of 2014; however, more work is needed to prevent corruption occurring during the procurement cycle.” 4
  6. 6. Missed opportunity for breakthrough in negotiations • 2017 amendments to the PPL caused subsequent increase in non-transparent spending by the Montenegrin Government • Low value procurement: wide discretion of contracting authorities; delays in adopting internal acts; reduced transparency and competitiveness; severely limited right to legal protection • 2017 – 2020: short-term transitional solution taking root 5
  7. 7. Security and Defense Procurement in a Legal Vacuum • The envisaged by-laws for security and defense procurement have never been adopted • The Law dedicates only two articles to these procurement • The Ministry of Interior, Ministry of Defense and the National Security Agency – claim that they do not conduct confidential procurement activities as of May 2015 • Continued expenditures for these procurement are, allegedly, only payments of obligations from previously concluded contracts • Most documents are not publicly available and “INTERNAL” • Reports of the State Audit Institution (SAI) are a rare testimony to how the authorities take advantage of reduced transparency to procure goods, services and works, whose purpose and essence is not in line with the safety of the state and its citizens 6
  8. 8. Confidential Procurement in Montenegro: Far from Public’s Control 7
  9. 9. Centralized Procurement: Not There Yet • Envisaged by the 2015 Public Procurement Law and retained in the 2017 amendments • Started implementing in January 2018 when the Decree on Centralisation of Public Procurement of Goods and Services” came into force • Faces many obstacles and challenges in practice, but its very introduction to the Montenegrin public procurement system constitutes a step forward, towards more efficient management of this part of public spending 8
  10. 10. Centralized Procurement: Not There Yet • Planning and reporting are largely decentralized • There is no specific database on this segment of public spending; cross-referencing the data from different sources results in disparate aggregate values of signed contracts 9
  11. 11. Centralized Procurement: Not There Yet • The Property Administration compensates for the delays by launching urgent procurement requests and shortening tender submission deadlines • Centralised procurement activities are also delayed due to the untimely actions of the Property Administration, as well as the State Commission and Administrative Court – line institutions in the remedy system • The Property Administration often uses centralised procurement to purchase a single vehicle • January 2018 – June 2019: six out of ten procedures were launched for the purchase of only one or two vehicles 10
  12. 12. Centralised Procurement in Montenegro: The beginning of a Long Road 11
  13. 13. What we do with our findings? • Organise events, debates, panels and meetings with stakeholders; • Participate in public consultations (if any) on the PPL; • Take part in the Working Group for EU negotiations within Chapter 5 – Public Procurement; • Media campaigns 12
  14. 14. The new PPL 2020 • October 2019 – Government adopted Proposal for a new PPL (non-participatory drafted) • It is expected implementation will commence in spring 2020 • Largely in line with the EU Directives • Many areas remained to be regulated by the by-laws, which are yet to be drafted • Public participation for by-laws? 13
  15. 15. Thank you for attention! 14