SHORT REPORT: MONITORING PUBLICATION OF ANNEX CONTRACTS Case studies of Prizren, Ferizaj, Mitrovica South and Kamenica Dështimet E Kuvendit Në Funksionalizimin E Agjencisë Për Informim Dhe Privatësi Short report: Monitoring publication of annex contracts Case studies of Prizren, Ferizaj, Mitrovica South and Kamenica Title: Short report “Monitoring publication of annex contracts - Case studies of Prizren, Ferizaj, Mitrovica South and Kamenica” Year of Publication: January 2021 Published by: Lëvizja FOL “Andrea Gropa” No.35 10000 Prishtinë, Republic of Kosovo [email protected] +386 (0)49 131 542 Copyright © 2020. FOL Movement. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written consent of the publisher. This short report has been prepared by Lëvizja FOL and supported by USAID through the Transparent, Eective and Accountable (USAID TEAM) activity. The views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development (USAID) or the Government of the United States of America. Contents 2 Key findings 3 Introduction 4 Methodology 4 Legal base of annex contracts 5 Data Analysis 7 Municipality of Prizren 8 Municipality of Ferizaj 9 Publication of annex contracts Key findings Publication of contracts and annex contracts in e-Procurement platform is a legal obligation. But the report findings shows that this is not fully implemented in some municipalities Lëvizja FOL monitored the number of annex contracts published during the period January - June 2020. During this six-month period only the Municipality of Prizren and the Municipality of Ferizaj have signed annex contracts. The Municipality of Prizren has signed three annex contracts, while the Municipality of Ferizaj has signed four annex contracts. Annex contracts of the Municipality of Ferizaj during the monitoring period were not published either on the ocial website of the municipality or in the e-Procurement. The contracts were provided in person by the Municipality, following requests for public information. The Municipality of Prizren published all annex contracts in e-Prokurimi and on the municipal website. To provide a comparison, Lëvizja Fol also looked at the number and type of annex contracts for 2019, but not if they were published or not. The data shows that the Municipality of Prizren had 13 annex contracts, the Municipality of Ferizaj had 19, the Municipality of Kamenica had 6 annex contracts, while the municipality of Mitrovica did not have any annex contracts. Levizja Fol also looked at the publication of contracts for 2019 in e-Prokurimi. There are 4,212 signed contracts, while in e-procurement only contains 3,486, which means that 726 are not published at all on this platform. 2 Introduction Lëvizja FOL (FOL Movement) with the support of USAID in Kosovo, through the Program for Transparent, Eective and Accountable Municipalities (TEAM) has designed and built the Open Procurement Transparency Portal (OPTP), as a platform for open public procurement contracts, based on the model of Transparency International in Slovakia. This portal consists of the current data published by the Public Procurement Regulatory Commission, more specifically the contract award announcements. Since its launch, the Portal has generated data on more than 18,300 contracts signed by 262 public contracting authorities with approximately 3,453 suppliers or economic operators. The portal is updated automatically with the data received from the Public Procurement Regulatory Commission (PPRC). The OPTP as a platform running parallel to E-Prokurimi (e-procurement portal), has resulted in a major shift in transparency and the opening of public procurement. As of September 2018, the PPRC has made mandatory that all contracts must be published on the E-Prokurimi platform, thus making it easier for the migration of the Open and Transparent Procurement Portal. Obtaining data for signing contracts through the PPRC and the government portal Open Data, exceeds the main purpose of the existence and operation of the Open Procurement Portal. As a result, FOL with the support of USAID in Kosovo, respectively the Program for Transparent, Eective and Accountable Municipalities (TEAM) is continuing to monitor public procurement and enrich the portal with new contracts. The objective of the Open Procurement Portal is to provide information to institutions, journalists and civil society representatives in order to gather the information on how the state budget is spent. At the same time, research in the field of public procurement obliges public institutions to continuously improve the transparency and become more accountable of the public funds. Meanwhile, an important part remains the publication of contracts in the e-Procurement portal by all contracting authorities, and consequently the publication of annex contracts. Levizja FOL, during the process of monitoring the publication of contracts for 2019, based on the Regulation and Operational Guideline of Public Procurement A01, noticed that not all contracts are published in e-Procurement. In the lists of PPRC there were 4212 signed contracts, while in e-procurement platform there only 3486 contracts, which results on 726 contracts that are not published at all on this platform. Furthermore, Lëvizja FOL monitored the data related to the number of annex contracts published during the period January - June 2020 for the four municipalities of Kosovo (Prizren, Ferizaj, Mitrovica and Kamenica), and analyzed the costs arising from the signing of these contracts. Consequently, during the monitoring period, data were collected regarding the number and type of these annex contracts, the date of signing, the date of completion of the foreseen works, their value, as well as data on whether or not they were published on e-Procurement platform. This monitoring was triggered as a result of the preliminary monitoring of the construction process of the highway Prishtina - Gjilan - Dheu i Bardhë, which was followed by numerous irregularities and which cost the state budget 88,618,511.95 euros. Hence, a large amount of the government budget funds are spent through the negotiated procedure without publishing a contract announcement, which includes annex contracts. Only in 2019, 514 contracts were signed through this procedure, worth nearly 56 million euros. Meanwhile, as mentioned above, the need to publish annex contracts remains important, as provided by the Regulation and Operational Guideline for Public Procurement. 1 Amended and Supplemented Regulation and Operational Guideline of Public Procurement (A01), 2018 2 FOL Movement. 2019. Headless Road - Construction Monitoring of the Prishtina-Gjilan-Dheu i Bardhe Highway. 3 Methodology According to the Regulation and Operational Guideline of Public Procurement, all contracting authorities must publish contracts on their websites and in e-procurement, including annex contracts. Considering this, Levizja FOL aimed to monitor annex contracts, starting initially with four municipalities of Kosovo (Prizren, Ferizaj, Mitrovica and Kamenica), in order to establish a monitoring base for other remaining Kosovo municipalities, in relation to the reasonableness of signing annex contracts, their type of contract, as well as the costs arising from the conclusion of these contracts. Initially, Levizja FOL analyzed the legal basis for annex contracts, including the recommendations provided in the Auditor General's reports. While analyzing the Audit Reports, no remarks or suggestions were found regarding the annex contracts for year 2019, signed by the municipalities, that have been the attention of the monitoring. Among other things, special focus was given to the municipal Justification Document regarding the need to sign annex contracts during the monitoring period. It should be noted that with the functioning of the Contract Management module through the electronic platform, an easier approach will be created for monitoring annex contracts in relation to the elements that Levizja FOL has already considered during the monitoring process for these four municipalities. Legal base of annex contracts The contracting authority may use the negotiated procedures without prior publication of a contract notice for conducting public procurement activities (known as annex contracts), meeting the conditions set out in the Law on Public Procurement. Negotiated procedures without the publication of a contract notice are regulated in Article 35 of the Law (No. 04 / L-042) on Public Procurement in the Republic of Kosovo. This article specifies all the conditions to be met and the cases in which the contracting authority may use such procedures to carry out procurement activities. The contracting authority must notify the Public Procurement Regulatory Commission within two days of the decision to use this procedure. This is provided in paragraph 1 of article 35 of this law. Pursuant to paragraph 2 of this Article, such procedures may be used for the exercise of the procurement activity for the purpose of awarding any public contract - when for various reasons the contract must be awarded to a particular economic operator, if for reasons of protection of the intellectual or industrial property rights the contract may be awarded only to a certain economic operator, and if due to extreme emergencies caused by unforeseen events