From: Megi Ndregjoni
Are the Albanian Government’s Secret Procurement Contracts Legal?

On April 3, the government signed three contracts for the purchase of medical testing equipment, for the treatment and elimination of medical waste, and for the purchase of two new ventilators. The value of these contracts remains unspecified yet.

The government announced the contracts on Friday, stating only that these procurements were made “in the state’s substantial interests” and did not involve a call for bids. Instead, the government contacted and negotiated directly with the contractor.

The content of these contracts has not been made public and only the names of the contractors are currently known. This lack of transparency raises concerns regarding the way in which the contractor was picked, as well as the conditions of the contracts, that include the price and quality of the goods and/or services provided.

Article 6 of the Law on Public Procurement allows the government to sidestep the procurement procedures defined by law when “substantial state interests” dictate it.

The term “substantial state interests” lacks definition in the country’s legal framework, forming, thus, a legal void and making space for abuse, that would allow for avoiding procurement and competition legislation in the procurement of goods and services by public institutions.

It seems that the government has seized this opportunity, seeing as, without defining what “substantial state interests” are and what the circumstances that constitute it could be, it has delineated, in a February 2020 decision, the procurement procedures that will be followed under these circumstances.

According to this decision, public institutions have the right to choose a direct contract with any contractor that is able to offer the goods or services needed in emergency cases “caused by extraordinary circumstances out of the hands of the contracting authority and the time available to resolve the immediate need is not sufficient for normal procedures to take place.”

The decision itself is debatable with regard to its legality and constitutionality, but the fact is that it has made way for the government’s current procurements that are taking place via a procedure by which the government picks a contractor that can provide the needed goods or services, negotiates with them directly, and then signs a contract – all done arbitrarily and with no transparency whatsoever.

This procedure is being used by the government for all contracts signed in the circumstances of the coronavirus crisis.

Furthermore, the government has not made public any of the contracts, though it remains obligated to do so, seeing as not even procurements dictated by “substantial state interests” waive the government’s obligation to make contracts public.

Contracts being kept hidden has exacerbated suspicions of abuse that surround them.