On March 14, 2019, at 9:00 am, the NASC organized the Appeal Review Meeting on the procedure for the acquisition of 31 buses by the Municipal Enterprise "Urban Bus Fleet". I have previously written about the serious law’ violations that have been admitted regarding the evaluation procedure for this procurement.
At the beginning of the meeting, the M.E. "Urban Bus Fleet" submitted a request to NASC counselors, namely to reject the appeal, based on Article 5, paragraph 1, a) of the Law 131 on Public Procurement.
It is true that that article provides as follows:
Article 5. Exceptions
(1) The provisions of this law shall not apply to:
a) public contracts awarded by contracting authorities operating in the energy, water, transport and postal services sectors and falling within the scope of these activities, these being governed by other normative acts for the coordination of award procedures for contracts in energy, water, transport and postal services sectors;
Thus, according to the above-mentioned provisions, the M.E. "Urban Bus Fleet" is not subject to the Law 131 when it acquires something, regardless if using public money, or not.
The appellant's representatives examined the request and the NASC decided to declare the hearing closed because, according to the procedure, firstly, it is required to analyze the exceptions invoked (the admissibility of the case); and only after to examine it. The appellant had to come up with his objections in that regard until 16:00 the same day. We do not know when the objections were sent, but the NASC took the decision surprisingly quickly, dating back to 14.03.2019 (!). Have they been so operative or was the examination superficial? Another moment that raises questions is why the M.E. "Urban Bus Fleet" invoked the exception just in the Appeal Review Meeting, and not when it was asked for clarifications regarding the appeal?
Finally, leaving aside the potentially suspicious moments, I would like to look at the objectivity and legality of NASC's decision (although the court is the one to rule on legality, it allows me to make some assumptions).
1. I strongly agree with the fact that the M.E "Urban Bus Fleet" falls under the exceptions listed in Art. 5, paragraph 1, a) (and here, NASC would say we can finalize the discussion, but still I do not think so);
2. The M.E "Urban Bus Fleet" carried out the public procurement procedure under the Law 131/2015, assigning itself the status of contracting authority according to the Law 131/2015. Here I refer not only to the fact that the tender documentation was elaborated according to Law 131/2015, as everyone can do this. However, the specification abounds with references to the Law 131/2015. Even in the point 44 it is mentioned that the appeals will be settled by NASC under the Law 131/2015. Even if assuming that such a copy-paste cannot be incriminated, we return to the provisions of art. 5 of Law 131:
(1) The provisions of this law shall not apply to:
b) public contracts awarded by contracting authorities operating in the energy, water, transport and postal services sectors and falling within the scope of these activities, these being governed by other normative acts for the coordination of award procedures for contracts in energy, water, transport and postal services sectors;
3. So let us see what are the normative acts that the legislator could refer to in this case? Could this be a decision of the CMC (Chisinau Municipal Council) on the approval of procurement procedures within the M.E.? Or other decisions of this kind? We found CMC's decision no. 2/10 of March 16, 2018 regarding the approval of the Tender Specifications for the procurement of buses for the M.E “Urban Bus Fleet”. Although the text of the decision does not expressly mention the Law 131/2015, this decision approves Tender Specifications for this acquisition, and provides in point 3.1. The award of the public procurement contract is carried out in accordance with the provisions of the following normative acts in force in the Republic of Moldova:
a) The Law 131 of 03.07.2015 on public procurement
4. Thus, we also have the normative document available, or can anyone dispute that CMC's decision is a normative act, the tender specification being the annex to the decision and, therefore, a part of it?
5. Moreover, Article 13 (5) of Law 131/2015 provides that Any other entity which does not cumulatively meet the requirements under para. (2) may be qualified as a contracting authority, upon choice or decision of the competent management bodies, provided that procurements are made in strict compliance with this law. Thus it becomes even clearer that the Municipal Council has given the capacity of contracting authority to the M.E. “Urban Bus Fleet” by the aforementioned decision.
We have to mention the fact that in 2017 the NASC cancelled a bus procurement procedure carried out by the M.E. “Urban Bus Fleet”. So, in 2017, the procedure was not rejected without examination, and this exception was neither invoked by the M.E. nor applied ex officio by NASC. Moreover, one of the three conselors who examined both appeals is Iacob Plămădeală! Thus, he could not invoke "we did not know" what our colleagues did two years ago.
In conclusion, we have the following absurd situation (or, the absurd appears to become normality in our country):
Although the Law 131/2015 exempts M.E from public procurement procedures, the Municipal Council has ordered the purchase of buses under Law 131/2015. After organizing a few (!!!), not only one, bus procurement procedures (precedents failing due to the lack of bids), all under Law 131, the M.E, waking up to an appeal (with little chance of success, while buses are already circulating through the city) asks for an exception to the Law, and NASC is also in a hurry to offer it, completely ignoring the existence of the CMC decision, but also its own decision taken two years ago on the same subject.