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THE ASSESSMENT OF THE PUBLIC PROCUREMENT LEGAL FRAMEWORK AND PRACTICES BY BURUNDI CIVIL SOCIETY. PRESENTED BY Chantal NZOPFINDEKUYE. CONTENT . INTRODUCTION BACKGROUND PUBLIC PROCUREMENT PRACTICES AND SENSITIVE AREAS RECEPTIVENESS OF THE REFORMED LAW.
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THE ASSESSMENT OF THE PUBLIC PROCUREMENT LEGAL FRAMEWORK AND PRACTICES BY BURUNDI CIVIL SOCIETY
TO WHAT EXTEND THE CIVIL SOCIETY APPRECIATES THE PUBLIC PROCUREMENT LEGAL FRAMEWORK
An assessment work reveals the strengths and weaknesses of the topic or the subject under study. Here the assessment will highlight the positive and negative effects of the implementation of the reformed public procurement law in Burundi.
Following questions are raised: What are the actual and likely effects on growth and development of the country? What is the impact the implementation of the current procurement law has on the business/investment environment?
The civil society concern is to observe and monitor the success and the failure, the weaknesses and the strengths of the implementation of the provisions of the law and make comments on issues that need special attention.
The latter intended to fight corruption and economic embezzlements in the procurement sector that seems to be a reality everywhere . The public procurement legal framework has been inspired by a number of laws among them the law n° 1/12 of 18th April 2006 carrying preventions and repressive measures against corruption and related infractions.
The current legal framework dated from April 2008 and was initiated by the public administration under the patronage of the World Bank . The law aimed at creating favorable conditions for the competitiveness of companies and enhancing economic development in Burundi.
The scope of the law is as broad as possible so that all public procurements in the three areas of tenders – works, goods ,and consultant services- are concerned with the public procurement legal framework.
To what extend the provisions of the procurement law are implemented? To what extend the civil society appreciates the results expected from the implementation of the procurement law in force?
The procurement law presents interesting opportunities since it allows providers to capitalize on their competitive advantages such as costs and skills.
a. Provisional plans
The plans can be revised and the National Control Procurements Office must be informed about those plans for approval. We assume the publication help providers to know the prospective procurements, so as to prepare their investment accordingly.
If this is the case ,the legal framework seeks to eliminate all types of discrimination .The development of tender document must be clear and free from all the tendencies .
Bidders have right to formally inform about any sort of payment given to any person acting as intermediary or agent at every stage of the whole process.
Instructions to bidders must be clear otherwise they are likely to make an official request for any clarification on the tender document.
Also, in the case of international tender document, we realize that a number of international bidders areinterested. No discrimination Art.52
Impartial procurement process between procuring entities parties and suppliers result in the awarding of contracts. If one of the contracting parties doesn’t respect the clauses of the contract ,the other has recourse to the Conflicts Resolution Committee at the Regulatory Public Procurements Authority .
The procurement analysis cell submits their analysis report with prospective attribute to the procurement responsible. That analysis is then sent to the National Control Procurements Office .The procuring entities must formally inform the rejected bidders about the criteria that reject their offers.
Within a period of 5 days, rejected bidders are allowed to submit their complaints if any.
The article 86 of the procurement law provides what are the main elements of any contract.
The Procurement chair person is charged with the implementing procurements execution procedures. He is the one who awards the contract but he cannot be a member of the bid analysis cell.
An independent auditor must be employed by the Regulatory Public Procurements Authority according to the public procurement law. This is to check if the regulations have been followed in the execution of the procurement.
Similarly, penalties are paid by the contracting authority party when he delays to pay according to the clauses of the contract.
The latter must send all the related copies to the Regulatory Authority for Procurement.
That special permission must be given by the National Control Procurement Office . We realize that the public agency users respect the regulations about the legal categories of tenders. Again, the year 2009 is given as example: how many mutual agreement tenders have been allowed? The law allows 10% .
Open tenders:97%;shortlisted tenders:1,32% ;mutual agreement:5,2%
Open tenders:94,40;shortlisted tenders:3,20; mutual agreement: 2,40
.Consultant services: Open tenders 85%; shortlisted 11,76;mutual agreement :4,90
The National Office for procurement control must check whether the agency users do not go beyond the legal rate.
To what extend suppliers and providers comprehendthe Public Procurement Law?
This means the law users get progressively habit with the regulations. Points of grievance have become specific within the current public procurement legal framework.
We assume the law has come to enhance the nationalism and patriotism towards the practioners. Regulatory Procurements Authority is parity and is composed of 3 sectors :public administration (50%),private sector (30%) civil society (20%) .That composition makes the Authority trustworthy . Actually, the Regulatory Authority is trusted by all the stakeholders.
There is no sad commentaries on that institution. For this reason, it is easy to address any legitimate complaint from anyone.
However, the new procedures are not fully integrated by all the stakeholders in public procurement. Here we mean the Contracting Authority Parties and the bidders themselves. This is revealed by the types of the complaints about the violations of the provisions of the law.
That why the Regulatory Procurement Authority has already organized training sessions for almost all the bid analysis cells that are attached to all contracting authority parties. We realize that those trainings sessions constitute a value added as regards the stakeholders. During this year 2011,15 training sessions are organized and 9 have already been and held.
An independent observer is not yet recruited Regulatory Procurements Authority provided in the Appendix of the legal framework. The reason is that Regulatory Procurements Authority is not financially independent. For the same reason the Procurements Official Journal, again provided in the law hasn’t been set yet.
Some bidders especially from up country submit their cases to OLUCOME( Observatory for Fight against Corruption and Economic Embezzlement(one of the well known civil society associations but the Counseling and referral unit refers the cases submitted to him to the Regulatory Authority. 5cases have already been referred during this year 2011.
Bridging the information gap: The official procurement journal provided by law but unfortunately ,it is not yet established. It would be active in collection information in order to bridge the information gap and to secure effective participation by private sector in the public procurement
Readiness of the private sector to contribute to the improvement of business environment.
We wish the procurement procedures should be fully harmonized at the level of East African region. That would make easy the services and all the member countries would find themselves united in one market.