THE ASSESSMENT OF THE PUBLIC PROCUREMENT LEGAL FRAMEWORK AND PRACTICES BY BURUNDI CIVIL SOCIETY

2. THE ASSESSMENT OF THE PUBLIC PROCUREMENT LEGAL FRAMEWORK AND PRACTICES BY BURUNDI CIVIL SOCIETY

3. PRESENTED BY Chantal NZOPFINDEKUYE

4. CONTENT • INTRODUCTION • BACKGROUND • PUBLIC PROCUREMENT PRACTICES AND SENSITIVE AREAS • RECEPTIVENESS OF THE REFORMED LAW

5. TO WHAT EXTEND THE CIVIL SOCIETY APPRECIATES THE PUBLIC PROCUREMENT LEGAL FRAMEWORK • GENERAL REMARKS • CONCLUSION

6. 1.INTRODUCTION 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.

7. 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?

8. 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.

9. 2.Background • The current public procurement law in Burundi is a result of a cooperation between public administration ,private sector, civil society and fund bakers aimed at improving the business environment by enhancing consciousness of all the stakeholders to respect regulations through a reformed law .

10. 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.

11. 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.

12. 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.

13. 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?

14. The procurement law presents interesting opportunities since it allows providers to capitalize on their competitive advantages such as costs and skills.

15. 3.Public procurement practices and sensitive areas. a. Provisional plans • Procuring entities must develop and publish the annual procurement provisional plans according to the article 15 of the public procurement law.

16. 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.

17. b. Tender document • Tender document is advertised so that any bidder who wishes to offer the request can participate .Document tender is sold to recover the expenses related to writing, printing, etc. Is there any supplier who is excluded by the cost of tender document?

18. 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 .

19. c.Strengths of the law • The current public procurement law has come to make an end to unfair behaviours previously observed. • For a start, procuring entities must make sure that all the principles of competition ,equality and fairness are used in the procurement process.

20. 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. • Dishonest bidders are exposed to sanctions or are blacklisted temporary or permanently from the public procurement system according to the case. 3 have been already excluded for a period of one year.

21. Instructions to bidders must be clear otherwise they are likely to make an official request for any clarification on the tender document. • The public procurement has attracted fund bakers in Burundi. The example given is the Belgium Technical Committee whose procurement system acts in conformity with the local regulations.

22. Also, in the case of international tender document, we realize that a number of international bidders areinterested. No discrimination Art.52 • Any candidate fulfilling the required techniques and financial capacities is allowed to participate in the tender process. Hence the prior orientated tender document is prohibited by law.

23. 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 . • Disciplinary committee of the council of the Regulatory Procurements Authority decide about punishment towards unfair bidders

24. What about unfair public authority if any? • Weakness : The same disciplinary committee doesn’t decide about punishment towards unfair public authorities .Only formal advices are given.

25. Calls for tender • Before publishing the tender document ,the National Control Procurements Office reviews how it is and how it fits into the legal procedures. Moreover the likely bidders are allowed to make any comment on tender document within the legal time limitations.

26. 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.

27. Within a period of 5 days, rejected bidders are allowed to submit their complaints if any. • Generally, the complaints are based on works and goods tenders. Consultant services rarely contain points of grievance. These are mainly intellectual works where the predominant element is not easily quantified or numbered. Along this year 2011,only 3cases have been registered.

28. Contract award and management

29. The article 86 of the procurement law provides what are the main elements of any contract. • The law provides that the contract is awarded to the best provider i.e the one who satisfies the administrative and technique requirements and who proposed the lowest realistic price. If the contrary happen because of corruption, there is a need of proof to implement the sanctions.

30. 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. • The contracting authority party is the highest responsible of the procurement execution. He must make sure whether all the provisions of the contract are being respected.

31. 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.

32. Contractual limitations period. • Amendment : when they happen circumstances that modify the initial contract about procurement, an amendment to the contract that takes into account the modifications is established. • The penalties are paid by the attribute of tender when he doesn’t finish it within the contractual period or for non observance of regulations of the contract (the maximum rate of penalties is 10% of the total price of the tender.

33. Similarly, penalties are paid by the contracting authority party when he delays to pay according to the clauses of the contract. • Hence, any stakeholder in the procurement contract must be sensitive as regard the period limitations and the mandate of the procurement.

34. 4.Receptiveness of the new law • -How far are the public agency users complying with the regulations included in the law? • Here, some examples are given: • According to the article14 of the public procurement, Regulatory Procurements Authority must make a statistic database about the tender attribution, execution and any documentation between the attributes and the contracting authority parties.

35. The latter must send all the related copies to the Regulatory Authority for Procurement. • In relation with the previous, during 2009, the second year of implementation of the new law, 683 tenders have been registered,533 have been finished ,among them 212 have got seal of approval(data found at the statistic unit of Regulatory Procurements Authority).

36. Mutual agreement tender • This was a type of tender preferred by many contracting authorities parties because procedures are easy and take small time. However, the article 40 of the current public procurement law has provided how and when such type of tender is allowed with a special permission. The will of the law is to reduce them as much as possible. Only 10% is allowed

37. 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% .

38. Good tenders: Open tenders:97%;shortlisted tenders:1,32% ;mutual agreement:5,2% .Works tenders: 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.

39. To what extend suppliers and providers comprehendthe Public Procurement Law? • Here a comparative example given is about complaints received at the Public Procurement Regulatory Authority:

41. This means the law users get progressively habit with the regulations. Points of grievance have become specific within the current public procurement legal framework.

42. 5. To what extend the civil society appreciates the publicprocurement legal framework

43. 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.

44. There is no sad commentaries on that institution. For this reason, it is easy to address any legitimate complaint from anyone. • We are satisfied with the public procurement legal framework that integrate civil society to make the procurement system more effective .

45. 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.

46. 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.

47. General Remarks • The language style used in the procurement code is not easily understandable to non practitioners. This may be an obstacle for the comprehension of some providers and suppliers or even the bid analysis cells attached to the contracting authority parties . Also the law is very detailed so that a well summarized additional texts should be available to make the procedures clear to every interested person.

48. 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.

49. Lack of information. • There is inadequate information on legal and regulatory framework in procurement sector in Burundi. Also there is inadequate information on which procurements stakeholders are responsible of this or that.

50. 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.