6. Public procurement (Dimension 5b) in the Western Balkans and Turkey

Most economies have adopted new strategic policy instruments to increase SMEs’ participation in public procurement

All the assessed economies have adopted multiannual national strategies or action plans for further developing their public procurement systems. Relevant documents deal with improvements to the legislative framework, strengthening administrative capacity, increasing the efficiency of legal protection measures, and combating corruption and conflicts of interest. As far as SMEs are concerned, those strategies address issues such as simplifying and streamlining procurement procedures, reducing administrative red tape, and providing training and consultation to contracting authorities and economic operators.

For example, in Montenegro, the new Public Procurement Strategy (Montenegrin Directorate for Public Procurement Policy, 2021[8]) aims, among others, to increase the participation of SMEs in public procurement procedures through a forum of dialogue with the private sector, identifying obstacles and challenges for participation in the public procurement market, organising training for SMEs, analysing the ability of economic operators to fulfil the requirements of public tenders, and developing guidelines and documentation on how to do business with the public sector. In Serbia (Serbian Public Procurement Office, 2019[9]), the new strategy aims to increase the efficiency and cost-effectiveness of public procurement procedures; strengthen competition; reduce the risk of irregularities; and promote and stimulate environmental, social and innovative aspects in public procurement. In North Macedonia, the Public Procurement Bureau prepared a draft strategy for the development of the public procurement system (Macedonian Public Procurement Bureau, 2021[10]) which envisages a number of activities dedicated to strengthening the position of SMEs in public procurement, in particular publishing guidelines, organising training, and strengthening monitoring and reporting.

New legal procurement laws harmonised with EU requirements have been adopted across the region. All WBT economies have a solid legislative framework in the field of public procurement. Four economies (Albania, Montenegro, North Macedonia and Serbia) have recently adopted new public procurement laws (PPLs) implementing provisions of the 2014 EU Public Procurement Directive. New PPLs are characterised by a high level of EU compliance, with only a few cases of inconsistencies or shortcomings. Provisions that do not fully correspond to EU requirements concern, for example, some additional grounds for exclusion of economic operators and application of “blacklists” of economic operators (automatic exclusion for a certain period of time, due, for instance, to withdrawal by the winning bidder from signing the contract [Albania and North Macedonia], a lack of solutions concerning self-cleaning of economic operators [North Macedonia] or limitations concerning the share of contracts covered by subcontracting [Albania]). In some cases, however, this generally positive view concerning EU compliance of PPLs is affected by the adoption of, in addition to a general PPL, specific regulations addressing some types of procurement, usually major infrastructure linear constructions of big values (Serbia) or constructions executed in the aftermath of the earthquake in Albania. Those procurement rules provide for a number of exceptions from general public procurement rules that are not consistent with EU rules, concerning for example minimum time periods for submitting tenders (much shorter than those required by EU rules) or rules on procurement review (shorter time periods for appeals and a lack of a standstill period between notification of selection of the best tender and the conclusion of a contract).

Foreign bidders generally have the same rights as domestic bidders

One of the cornerstones of a public procurement system is the principle of equal treatment for all economic operators that have the capacity and resources to provide goods or perform services for the public administration, regardless of their origin or organisational form. In general, with a few exceptions, economic operators enjoy free access to public procurement procedures in WBT economies regardless of their origin and domestic suppliers do not receive privileged treatment.

At the time of writing, only Turkey applies domestic preferences, such as the right to exclude foreign suppliers from public procurement procedures under certain thresholds, a margin of price preference applied in favour of domestic suppliers for works or services and domestic goods, and the possibility (or obligation) of requiring that some or all products offered in public procurement are of Turkish origin. Serbia, which in the previous assessment period allowed domestic preferences, has adopted new public procurement provisions which require equal treatment of domestic and foreign operators. In Kosovo, an amendment to the Public Procurement Law adopted in December 2020, introduced, until 31 December 2021, preferential treatment of tenders submitted by domestic bidders or containing domestic products or services, which affected the principles of equal treatment and non-discrimination of economic operators. A level playing field has since been re-established in public procurement processes. In Bosnia and Herzegovina, the application of domestic preferences was supposed to be phased out on 1 June 2020. However, the Council of Ministers adopted a new temporary decision on preferential domestic treatment (with a 30% margin of preference) that was valid from 1 June 2020 to 1 June 2021. No new measures concerning domestic preferences have been adopted since the expiration of this temporary decision. Grounds for re-establishing domestic preferences in the future, however, still exist in the Public Procurement Law (Parliamentary Assembly of Bosnia and Herzegovina, 2014[11]) and new preferences may be adopted by the government by means of implementing regulations (a government decision).

Large procurement contracts can be divided into smaller lots to facilitate SME access to the public procurement market

One of the instruments contracting authorities can use to improve SMEs’ chances in public procurement is to divide large but heterogeneous contracts into smaller chunks, or lots, which are better suited to SMEs’ capacities (OECD, 2016[12]). This instrument is now explicitly provided for in the 2014 EU Public Procurement Directive. See Box 6.1 for some examples from the European Union.

Exclusion of economic operators is allowed in accordance with EU rules, but some economies allow automatic exclusion, which is contrary to EU law

Those WBT economies which adopted new PPLs have also adjusted the list of circumstances leading to exclusion of SMEs from public procurement to those provided for in the EU Public Procurement Directive. Some PPLs, though, allow for additional automatic exclusion of economic operators based on decisions of the public procurement office (or agency) in situations not explicitly allowed by EU law. For example, in Albania, an economic operator who withdraws from signing a contract is “blacklisted” and excluded from all procurement procedures for a period established by the public procurement agency (PPA). In such a case, contracting authorities conducting public procurement procedures are not allowed to conduct their own assessment of the reliability of the economic operator, but are bound by the PPA’s decision. Such an “automatic” exclusion, without the possibility of the contracting authority carrying out a case-by-case assessment, is not consistent with the case law of the Court of Justice of the European Union. In North Macedonia, bidders who withdraw their tender before the expiration of its validity period, do not accept correction by the tender committee of any arithmetical errors in the tender, fail to sign the public contract in accordance with requirements of the tender documentation and the tender submitted, or do not provide the performance guarantee, if so required by the contracting authority, lose their tender security. In addition to their tender security being forfeited, such bidders receive negative references published on the electronic system of public procurement website. This results in them being automatically excluded from participating in procurement procedures for a period not shorter than six months (and not longer than one year) from the date of issuing of the negative reference, which is not compliant with the EU acquis. Box 6.2 provides a good practice example from Romania.

New public procurement rules have simplified evidence requirements to be fulfilled by bidders

Albania, Montenegro, North Macedonia and Serbia have introduced standard forms of self-declaration that include most of the relevant information used as preliminary proof of fulfilment of exclusion and qualification (selection) criteria by economic operators. In these economies, in principle, a self-declaration containing the relevant information on the economic operator is submitted by all bidders or candidates in public procurement procedures and documents or certificates issued by public institutions or third parties are only required from the best bidder. In Turkey, economic operators may submit their self-declarations with their bids when e-procurement is used. However, in addition to the best bidder, the second-best tenderer must also submit the relevant documents that cannot be verified on line prior to the contract award decision. Qualification (selection) requirements could still be simplified in Bosnia and Herzegovina and Kosovo.

Joint bidding in general is allowed, though in some cases additional burdens are imposed on companies willing to jointly participate

One instrument that increases SMEs’ chances in public procurement is joint bidding. This allows a number of suppliers who do not individually meet the contracting authority’s requirements to combine their resources and capacities to fulfil them. According to EU rules, tenders or requests for participation may be submitted by groups of economic operators (consortia) and contracting authorities may not require such groups to take a specific organisational form for that purpose. Contracting authorities may only require it from the winning bidder if it is necessary for the successful delivery of supplies or performance of services. Some economies, however, even if they in principle comply with the EU rules, require groups of bidders or candidates to fulfil additional requirements. For example, in Montenegro, tenders or requests for participation may be submitted by groups of economic operators. However, the PPL imposes some formal requirements concerning such groups. Bidders submitting joint tenders should conclude in advance a contract on joint participation which regulates mutual rights and obligations, determines which member of the joint bid is the holder of the bid, which part of the procurement subject each of the members of the joint bid is in charge of, as well as their percentage share in the total value of the bid. In Albania, the new PPL, unlike the previous one, does not allow contracting authorities to request that groups of economic operators assume a specific legal form to submit a tender or request to participate. However, implementing regulations impose additional obligations on jointly participating bidders and require submission, together with a tender, as in the case of Montenegro, of a co-operation agreement regulating the details of the co-operation of members of the group.

Subcontracting is permitted, though in some cases the share may be limited

Another instrument that favours SMEs is subcontracting: the winning bidder who signs the contract allows a part or parts of it to be performed by third parties (subcontractors). In this way, SMEs which are not able to carry out the whole contract can provide their services for smaller parts of a bigger project that is better adjusted to their capacities. All WBT economies provide for the general possibility of subcontracting a part or parts of a contract to third parties. Some economies even underline that subcontracting should be allowed to permit SMEs to participate. Two economies removed previously applicable limitations from their procurement rules concerning the maximum share of the contract that may be subcontracted (Montenegro and Serbia). Elsewhere, some limitations still exist. In Albania, for instance, the subcontracted part of the contract must be proportionate to the value of the contract and may not exceed 50% of the overall contract value3. This upper limit has been raised, though, from 40% in the previous rules. In Kosovo, while the PPL does not set limits on the share of subcontracting, the operational guidelines set a limit of 40% of the contract value.4 In Turkey, contractors can choose their subcontractors freely; however, they must give the subcontractors’ names to the contracting authority for confirmation. According to the general procurement specifications, subcontractors cannot undertake the whole work covered by the contract (subcontractors cannot perform 100% of the contract).

Rules on contract award criteria were modified to put more emphasis on selection of the most economically advantageous tender

The use of the best price-quality criterion instead of the lowest price is often recommended as a tool to help SMEs gain an equal footing to public contracts (European Commission, 2019[21]). It is assumed that while SMEs may be disadvantaged in delivering off-the-shelf mass products at the cheapest possible purchase price, they may be able to offer customised, innovative goods or services that perform better in terms of quality, and broader economic, social and environmental impacts. Such products may be more cost-effective in the longer term when the full life-cycle cost is considered.

Across the WBT region, modified public procurement rules either give complete freedom to contracting authorities to choose between the lowest price or quality-price criteria or limit the possibility of applying the price-only criterion. For example, in Montenegro, selection of the best tender must be based on the most economically advantageous tender criterion and price as the only criterion may only be applied exceptionally. In particular, it is allowed in a negotiated procedure without prior publication; to award contracts on the basis of the framework agreement; in an electronic auction or a dynamic purchasing system; in procedures for social and other specific services; and in the case of public procurement for the needs of defence and security or for the needs of diplomatic missions, consular offices, and military and diplomatic representatives abroad. In North Macedonia, public contracts are awarded based on the most economically advantageous tender and e-auctions are no longer mandatory. In addition, the price cannot be used as the sole award criterion for the procurement of services for software development, architecture or engineering services; translation services; or consultancy services. In Albania, in principle, the PPL provides for free choice between the lowest price and the best price-quality ratio and it does not recommend or oblige the use of the best price-quality ratio, except in the consulting services procedure. However, a preference for price-quality is clearly expressed in the implementing rules of the PPL. Accordingly, the price as the only evaluation factor can be used in the case of works, goods or services which have simple specifications, well-known technical standards and are easily available on the market. Serbia has introduced an EU-compliant definition of the most economically advantageous tender in its PPL.

Notwithstanding changes in legal provisions, in practice, the lowest-price criterion remains the dominant criterion for awarding contracts.5 In cases where the PPL gives contracting authorities the freedom to choose between the price-only criterion and the best price-quality ratio, the price criterion is predominantly applied, from 86% in Bosnia and Herzegovina to 99.63% of all procurement procedures in Kosovo (Lemke et al., 2020[22]). Only in Montenegro, where the PPL gives preference to price-quality criterion, does the share of the price criterion fall to 72% (OECD, 2022[7]) (however, in 2020, the new PPL was only applied for half the year, so this share should fall in the coming years when it will apply for an entire year).

There appear to be a number of reasons for the very limited use of criteria other than lowest price, including: fear of change and preference for sticking with well-understood routine procedures and a lack of practical training, guidance and resources needed to increase knowledge, understanding and confidence on the part of contracting authorities who may be concerned about the consequences of selecting and applying qualitative criteria incorrectly. Economies should do more to promote the application of quality criteria by providing consultation and advice, good practice examples, and models.

Participation conditions in all economies are non-discriminatory and proportionate

In accordance with EU procurement rules and good international practice, any requirements imposed by contracting authorities on economic operators who would like to apply for public contracts should be non-discriminatory, transparent and related to the object of the public procurement in question. Excessive requirements, especially if not justified by the complexity of the object of procurement, would deprive SMEs of the chance to participate in the public procurement market. Accordingly, all the assessed economies require that any conditions applied are non-discriminatory, related to and proportionate to the object and value of procurement.

For example, in Albania, economic operators participating in a procurement procedure should fulfil the criteria deemed necessary by the contracting authority, provided that those criteria are proportionate to the nature and size of the contract, and non-discriminatory. In Bosnia and Herzegovina, the minimum criteria required for candidates/bidders and the documents required to prove their fulfilment thereof must be proportionate, relevant to the procurement subject matter, clear and precise. Similarly, in North Macedonia, contracting authorities are not allowed to apply requirements related to suppliers’ economic and financial standing, or their professional or technical ability that are not proportionate to the contract’s subject matter. In Kosovo, a contracting authority may require that economic operators submit evidence demonstrating that they meet the minimum economic and financial requirements specified in the tender dossier and the contract notice. The minimum annual turnover required from the economic operators should not exceed twice the estimated contract value.

In Turkey, the PPL specifies that economic operators must submit their economic, financial, professional and technical qualifications to prove they are able to perform the contract in question. The PPL also defines the conditions under which economic operators are deemed ineligible and should be excluded from public procurement procedures. The contracting authorities’ tender documents and notices in invitations for procurement or pre-qualification should specify which documents are required for evaluating economic operators’ qualifications, in accordance with the procurement subject matter.

Tender and performance securities are all regulated

All the assessed economies have rules regulating the amounts of tender and performance securities, the form they take, and the cases in which they should be either returned or retained. However, in some cases, those provisions may act as a barrier to access to public procurement. For example, in Albania, a bid security (at 2% of the estimated value of procurement) is obligatory for contracting authorities in all public procurement procedures above the low monetary thresholds. It was optional in the previous law, allowed in procedures for contracts above high thresholds. Bid securities are forfeited if the winning tenderer decides not to sign the contract. This is understandable, since the role of the bid security is to ensure that the bid is serious and binding for the bidder. However, the PPL obliges the contracting authority to exclude a bidder who withdraws from signing the contract with this contracting authority for a period of one year, which seems to be a disproportionally harsh penalty as the bidder also loses their bid security. Additionally, bidders who decline more than five times to sign a contract within a year are excluded from participation in all public procurement procedures on the basis of a decision of the PPA for a period ranging from three months to three years. Similar solutions exist in North Macedonia, where economic operators must submit a tender security (in the form of a bank guarantee) up to a maximum of 3% of the tender value. They will lose this security if they withdraw the tender before the expiration of its validity period, do not accept correction by the tender committee of any arithmetical errors in the tender, fail to sign the public contract in accordance with the requirements of the tender documentation and the tender submitted, or do not provide the performance guarantee, if so required by the contracting authority.

Late payments and advance payments are appropriately addressed

One of the problems economic operators face in public procurement is late payments by public institutions for services performed or supplies delivered. Payments which are not made promptly pose an additional risk for SMEs and affect them more than they do larger enterprises; it can severely affect their liquidity and in extreme cases force them out of the public procurement market. All economies set maximum time periods for payments in public procurement and impose penalties for late payments. In Albania, contracting authorities are required by law to pay their contractors within 30 days unless a given contract or other legal provisions envisage a different time period. The law gives the creditor the right to interest if payment is delayed. In Serbia, the Law on Payment Terms in Commercial Transactions states that public authorities or public undertakings cannot exceed the 45-day payment period, with an exemption for the National Healthcare Fund and public healthcare providers when the 90-day period applies. In Bosnia and Herzegovina, legal provisions in both entities also require contracting authorities to pay their contractors within certain time limits – 60 days. If this period is not respected, economic operators can claim financial penalties or other comparable sanctions. In Montenegro, the time period for payment is 30 days from the day that goods are delivered or services performed. A contract may allow a longer period, but not more than 60 days. Economic operators who have fulfilled their obligations to the contracting authority are entitled to statutory interest rates in the event of late payment.

Advance payments by contracting authorities – i.e. payments made while the contract is being executed – are especially beneficial to economic operators, particularly SMEs. Some economies explicitly allow for this. For example, in North Macedonia, contractors can receive remuneration partially in advance, but for contracting authorities in the public sector, only up to a maximum of 20% of the value of the contract. The amendment of the PPL adopted in April 2020 allowed such contracting authorities to provide even higher advance payments, without a need to request a bank guarantee from the contractor, but only for products related to fighting the COVID-19 pandemic.

The institutional set-up is solid and offers support to both contracting authorities and economic operators, but more practical advice is needed

All of the assessed economies have a solid institutional set-up at the central level with public procurement offices or agencies (PPOs/PPAs), either as separate institutions (Albania, Bosnia and Herzegovina, Kosovo, Serbia, and Turkey) or within the framework of Ministries of Finance (Montenegro and North Macedonia). PPOs/PPAs discharge all central procurement functions required by EU rules, related to legislation, monitoring and reporting of the functioning of public procurement systems, control of legal compliance with rules and advice, training, and other support to contracting authorities and, to a certain degree, also to economic operators. Support takes the form of telephone help desks organised by central procurement institutions, providing advice to questions raised by economic operators, publishing guidance or manuals for contracting authorities, advising them on how to enhance SME participation in public procurement procedures, and direct support dedicated to economic operators.

Professional support offered by PPO/PPAs to contracting authorities and economic operators is, however, still insufficient as regards, in particular, complex procurement and the capacity of contracting authorities needs to be strengthened. In those cases where public procurement provisions have been recently modified (new PPLs were adopted), only basic information about the new rules has been provided and new operational tools such as manuals, guidelines and other practical tools are not yet generally available.

Electronic procurement has been significantly enhanced and submission of tenders by electronic means has become, with few exceptions, a general requirement

Use of digital technologies in the tendering process (e-procurement) to overcome lengthy paper-based procedures is regarded as being convenient for all kinds of enterprises, and particularly for SMEs, as it contributes to the simplification of the public procurement process and to the reduction of transaction costs (OECD, 2018[2]).

Electronic procurement is well advanced in all WBT economies, with new or significantly improved central public procurement portals, managed by PPO/PPAs, enabling fully electronic communication between contracting authorities and bidders, including also the electronic submission of tenders. In particular, in this assessment period, new public procurement portals have recently been established in Montenegro and Serbia, thanks to support from EU funds through technical assistance projects.

In Montenegro, the new e-procurement system, the National System of Electronic Public Procurement (Montenegrin Directorate for Public Procurement Policy, n.d.[25]), is obligatory for all contracting authorities and bidders. It has functionalities from the publication of procurement plans and tender documents up to the submission of tenders and their evaluation. In Serbia, the transparency of the procurement system is ensured by the new Public Procurement Portal (Serbian Public Procurement Office, n.d.[26]). The portal is comprehensive, and designed to support the entire public procurement process by enabling electronic communication among all parties involved at all the stages of the procedure. Access to the Public Procurement Portal is free of charge and allows users to conduct only those public procurement activities allowed under the PPL. In North Macedonia, the public procurement system benefits from an advanced Electronic System for Public Procurement (ESPP, n.d.[27]), which is efficient and highly appreciated by users. All communication and exchange of information, requests to participate and submission of tenders must be conducted through the ESPP, from which procurement documents can be downloaded. The ESPP has been upgraded and started using “red flags” for irregularities; it has also started using electronic archives and electronic complaints mechanisms. The ESPP’s E-appeals function became fully operational with effect from 1 April 2019. Electronic procurement systems have also been enhanced in Albania, Kosovo and Turkey. Only in Bosnia and Herzegovina does the PPL not foresee the electronic submission of requests to participate and tenders. They are still handled, in principle, in the traditional paper manner, although there are examples of electronic submissions where the contracting authority requests or indicates such a possibility and uses electronic auctions in specific cases.

Existing electronic procurement tools are being upgraded in Albania, Kosovo and North Macedonia. In some cases, works are very much advanced to introduce solutions enabling the application of electronic measures in legal protection procedures (submission of appeals to review bodies in Albania) as well as monitoring and management of contracts (also in Albania).

Most economies collect data on participation in public procurement, but not enough on SMEs specifically

Although all assessed economies collect and process various statistical data on public procurement, only a handful apparently dispose of specific information on the participation of SMEs, such as their participation or success rates. Only North Macedonia and Serbia were able to provide any useful statistical information in that regard. Other economies replied that such information was not available. Collecting information on SMEs in public procurement enables procurement offices and other relevant institutions to remove or lower barriers to their participation.

Monitoring SMEs’ participation in public procurement in Serbia has been improved through the introduction of an obligation for contracting authorities to provide as a part of contract award notices information on whether the awarded economic operator is an SME or not. Such data allow further activities to be defined to help improve SMEs’ level of participation. The new Public Procurement Portal should allow the PPO to collect data on the participation of micro and SMEs in public procurement procedures, the number and value of contracts awarded to them, as well as other parameters in accordance with the new features of the portal. The PPO is obliged to provide, in its annual reports, information about the level of participation of SMEs in the public procurement market. However, the PPO does not monitor or gather data on procurement conducted in accordance with the special law mentioned above (OECD, 2021[6]). Such contracts and their values are not included in the annual reports and their importance and influence on the procurement system cannot be properly assessed. The same is true for contracts concluded on the basis of international agreements (OECD, 2021[6]). The lack of this information does not allow the impact of those rules on the public procurement market to be properly assessed, in particular how it affects SME participation. In North Macedonia, the Public Procurement Bureau publishes annual reports on the functioning of the public procurement system, which include some statistical information on SMEs. All the economies collect information on the share of contracts awarded to foreign economic operators.

Independent review mechanisms and offices exist and transparency of the review process, timeliness of review and quality of review bodies’ ruling have improved

Even the most transparent, competitive and fair public procurement rules and procedures would be toothless without instruments to enforce them. To trust the public procurement process, suppliers need to know that if public institutions do not respect the rules there are special mechanisms in place to enforce them. This is why access to review procedures and bodies is so important for aggrieved suppliers. In accordance with the respective EU rules and good international practice, the appeals of economic operators whose rights have been breached by public bodies’ illegal actions and omissions should be reviewed by independent institutions.

All the assessed economies enable economic operators to have their complaints reviewed by procurement review bodies that are independent both from procuring entities and economic operators. In Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, and Serbia, economic operators’ appeals are heard by review bodies whose members are appointed for a given term by parliament or the government.

In Turkey, a separate department in the Public Procurement Authority (PPA) deals with “appeal applications”. To secure the independence and integrity of the PPA as the review body and avoid conflicts with other functions of the PPA (regulatory, monitoring and advisory), elaborate administrative routines are in place. Decisions on appeal applications are adopted by the nine members of the PPA’s board, supported by public procurement experts and assistants.

Review procedures mostly comply with minimum time periods and other EU requirements

In all the assessed economies, economic operators having or having had an interest in obtaining a contract, irrespective of the value of the procurement and type of the procedure, have the legal right to challenge the decisions taken by the contracting authority if they infringe the legal provisions. In most economies, appeals are submitted first to contracting authorities (entities) then to independent procurement review bodies or directly to procurement review bodies and then to administrative courts. Review procedures are thus composed of two or three stages. The time limits for challenging the decisions, the standstill period, and the mechanism for ensuring the ineffectiveness of the contracts are in line with the requirements of the acquis.

All the economies have time-efficient review procedures

All the assessed economies regulate the maximum time period in which procurement review bodies should reach decisions on complaints submitted by economic operators. In Montenegro, rulings of the procurement review body should be adopted within a statutory time limit of 30 days from the receipt of the complete documentation. In Albania, the PPC must conclude its review with a decision adopted within 30 days of receiving information or documentation from the contracting authority (entity), in case of procurement above the high monetary threshold, and 20 days below this threshold. A 30-day period is also applied in Serbia. The review procedure is shorter in North Macedonia, where the procurement review body is required to decide on an appeal within 15 days, counted, though, from receipt of the complete documentation related to the reviewed case.

All the economies require appeal fees, but they are low enough so as not to hinder access to legal protection

Public procurement rules should also provide effective remedies for aggrieved tenderers applied by independent review bodies. One of the functions of appeal fees is to reduce the submission of frivolous, vexatious complaints. An appeal fee works, especially if it is set at a relatively high level, as a deterrent against such practice – parties who will risk losing a given amount of money in the event they lose a case will probably refrain from submitting an appeal if they do not think they have a good chance of succeeding. On the other hand, excessively high fees may act as a barrier to access to justice and may discourage bidders from complaining of an infringement of rules by contracting authorities, especially if they risk losing significant funds if their claim is unsuccessful.

Most EU member states apply fees for filing complaints to reduce the risk of abuse through fraudulent claims. In WBT economies, submitting an appeal is also subject to a fee, but they are not excessively high. In Albania, the fee for submitting an appeal amounts to 0.5% of the estimated procurement value (without a maximum ceiling). In Bosnia and Herzegovina, entry fees are also defined according to the entire public procurement value. Fees range from BAM 500 to BAM 25 000 (about EUR 256-12 780). In North Macedonia, fees for an economic operator filing an appeal vary between EUR 100 and EUR 400, in addition to an administrative fee. In Kosovo, 2016 amendments to the PPL increased fees to 1% of the value of the estimated contract value, or in some cases of the bid, but to no less than EUR 100 and no more than EUR 5 000. In Montenegro, fees are 1% of the estimated value of the public procurement, but cannot exceed EUR 20 000.

In general, economic operators’ access to review procedures has greatly improved due to the introduction of e-appeals functionalities. In Albania and North Macedonia, appeals can be submitted, mandatory fees paid and processed by contracting authorities and procurement review bodies electronically.

The way forward for public procurement

• Complete the implementation of the 2014 EU Public Procurement Directive in those economies which have not yet implemented new or modified provisions and remove remaining inconsistences in those economies which have adopted new public procurement laws, concerning domestic preferences, participation of consortia, exclusion of economic operators, self-cleaning and subcontracting:

  • Economies where PPLs still contain provisions on domestic preferences should ensure that all economic operators have access to public procurement on an equal footing, regardless of their origin. This means abolishing provisions on domestic preferences.

  • Economies which have not yet implemented the 2014 EU Public Procurement Directive should introduce solutions and instruments beneficial for SMEs, such as greater possibilities of using self-declarations as preliminary proof of fulfilment of requirements concerning exclusion and qualification (selection) criteria and so-called self-cleaning as well as provisions concerning sustainable procurement.

• Support the application of non-price criteria for awarding contracts, in particular related to sustainable public procurement. This should include informing public purchasers about the shortcomings and limitations of applying the price-only criterion; presenting the advantages of quality criteria; and providing practical advice through good practice examples, standard models and evaluation formula. Finally, application of quality criteria should be a prominent topic of training of procurement officers.