AMAN Forewarns of Neglecting the Law due to Conflict of Powers between MoF and MoPW
AMAN held a discussion session focusing on a study prepared by AMAN on the legislative and policy actualities of the public procurement. The session aimed to discuss issues on the public procurement to develop recommendations on setting up a legal system which limits the corruption risks and maintain the use and management of the public funds, besides providing citizens with services of high quality.
The session was held with the presence of representatives from the Ministry of Public Works and Housing, the Chairman of the Supreme Council of Public Procurement Policies (SCPPP) and representatives of the General Secretariat of the Cabinet, the Ministry of Local Government, the Ministry of Social Affairs, the Supreme Judicial Council, the Ministry of Justice, Palestinian Energy and Natural Resources Authority, Palestinian Businessmen Associations, the Chamber of Commerce and Industry – Ramallah and Al Berih Governorates, and Palestinian Standards Institution, Engineers Association and some active human rights organizations, including The Jerusalem Center for Legal Aid and Human Rights and Al Haq Organization.
Dr. AzmiShuaibi, the Commissioner for Combating Corruption at AMAN, inaugurated the session pointing out the importance of the subject of public procurement. He indicated that there was a noticeable confusion committedby the concerned parties in the final stages regarding the Decision by Law No (8) of 2014 on Public Procurement. This includes stages of its issuance, amendments, developing its executive rules and then freezing its enforcement later on. All that meant to revert to the provisions of Law No. 9 of 1998 on the General Supplies and Law No. 6 of 1999 on Bidding for Government Works. Dr. Shuaibi said that AMANlooks at the Decision byLaw on Public Procurement and its amendments as a complementary pillar of the legislative and institutional system for combating corruption which enhances the system of integrity, transparency and accountability in managing the most important aspect of using public funds, i.e. biddings, procurement and general supplies.
AMAN Commissioner also highlightedthe importance of establishing a regulatory entity for this process which could be (SCPPP). The Council will be able to unify the legal framework governing procurement processes. Accordingly, SCPPP could replace the two laws of public supplies and bidding for government works through making any purchase process or any buyer, beneficiary or participating party and all committees abide by the provisions of the two laws. As a consequence, bureaucracy in the area of public procurement would be overcome.
On the other hand, Dr. Shuaibi pointed out the need for qualifyingthe staff working on the enforcement and implementation of the law and regulations and providingthem with training courses, as well as developing the necessary budgets in order to enforce the law appropriately. He indicated also the role of suppliers and competitors in monitoring the enforcement of the law and its regulations, besides the level of abidance by their provisions since they are represent the beneficiaries and have an interest in winning tenders and public procurement requests.
The study concluded with certain recommendations, including: the Decision by Law on Public Procurement should include special provisions relating to gifts and presents, special provisions requiring staff to submit their financial disclosures, provisions that state explicitly cases to exclude applicants for pre-qualification or any tenderer to apply for public tenders, a provision which requires entities responsible for public procurement to provide all decisions reasoned in order to achieve greater transparency once taking such decisions, in contrary to what is stated in the Administrative Law (The administration shall not be legally accountable to provided reasoned decisions; unless otherwise required to do so by the law).
The study recommendations includes also setting up the executive department of SCPPP, approving its organizational structure, providing SCPPP with offices, approving its own budget and forming its centralized tenders committees for supplies, services and other different areas.
H.E. Mr. Faek Al Deek, Chairman of SCPPP, expressed his delight for holding the discussion session thanking AMANfor the efforts it exerts to reform the current system of governance. He praised the study which tackled prominent key issues. He indicated that the reason behind freezing the law is the lack of funds to enforce it as SCPPP needs an executive staff to implement the tasks required, which in turn necessitates providing them with training and qualificationsand that SCPPP is working on that at present. He indicated that SCPPP organizational structure has been approved by the Cabinet and the necessary committees were formed. H.E. Mr. Faeksaid that there is intention to adopt electronic bidding which necessities the rehabilitation of the infrastructure available to all parties including suppliers; as when competitors are unable to submit their offers, then competition will be limited and minimized, and so rehabilitation should be comprehensive. He indicated also that public procurement guide will be completed within few weeks.
Mr. Bassam Jaber, Director General of the Central Tenders Committee, said that although the previous laws did not tackle the issue of contractors’ and suppliers’ grievances which are few and limited, procedures are to be suspended when contractorssubmit their grievancesuntil a decision is taken. As for the issue of control, he added that representatives of the State Audit and Administrative Control Bureau (SAACB) are present in sessions of public tenders, in addition to the control of financiers and Ministry of Finance of public tenders.
Participants addressed a range of issues, including the compliance of local authorities to the Law ofPublic Procurement. At the end of the session, theyrecommended the need to enforce the Decision by Law No. 8 of 2014 on Public Procurement and regulations and not to postpone its implementation since it is an important element in combating corruption, and that it should include the rules and principles of good governance. They additionally recommended the need to accomplish the Guide of Government Procurement and Bidding Procedures, and to enable SCPPP to exercise its roles instantly to discontinue any conflict of powers between MoF and MoPW.
This project is funded by EU