Summary of the Diagnostic Report on the Kyrgyz Republic
The Diagnostic Report followed up on the 2010 evaluation by examining Kyrgyz legislation in the light of the 2010 findings and the reforms triggered by the evaluation and made in the meantime concerning for example publication of notices. All in all, the Report assesses the current public procurement regulatory framework in the Kyrgyz Republic against a benchmark of key standards and best practices as they are expressed in the recently adopted 2011 UNCITRAL Model Law on Public Procurement and its background material.
The Report main findings are the following:
The Report recommends :
- As regards the fundamental requirements of the Model Law regarding accessibility of legislation and case-law, there is presently access to legislation and case law via the recently established official procurement web-portal but the access is not guaranteed in legislation. In terms of scope, the Law exempts a number of contracts contrary to the approach of the Model law and preferential arrangements in favour of the domestic market are allowed.
- As regards the Model Law requirements to tender/solicitation documents the requirement of objectivity in the description of what is to be delivered is a key issue. On this point, the officially approved standard documents to be used in tender procedures requires such objectivity, for example the use of international standards when it comes to technical specifications, but the Law as such does not deal with these important aspects.
- The Model Law requires that the launch as well as other phases of the procurement process, not least the award of the contract, should be publicised using a specific official location, be it in a daily gazette or a web portal. On this front the new web portal is together with a paper –based Bulletin the official location for publication of notices. One shortcoming is that, the law does not include any requirement that internationally interesting tenders should in addition be published in international media to increase competition.
- As regards procurement methods the draft law includes in accordance with the Model Law a selection of methods with and without negotiation and establishes corresponding procedural rules and conditions for applying the various procedures, including thresholds. However, the choice of procedures is according to the Law determined mainly by type of delivery (supplies, services or works) and value of contract, which does not correspond with the approach of the Model Law where other aspects matters, such as complexity and market size. Furthermore, the Law is dealing with e-procurement but only in a very general manner.
- When it comes to the detailed procedures for each procurement method concerning for example time limits, opening and evaluation of tenders for the purpose of ensuring equal treatment, the Law is on many points in accordance with the Model Law. However, the Law is on the point of evaluation criteria quite vague and does not include even an indicative list of criteria. Furthermore, no concrete measures are prescribed to protect the confidentiality of submitted bids and the rules concerning the negotiation phase during a two stage procedure does not require equal access of bidders to such negotiations or that records are made of negotiations.
- The Model Law requires that not just the launch of the tender procedure but also other decisions taken during the process, including amendments of tender documents are publicised or otherwise communicated. There are in addition requirements to protect transparency and integrity of communication. On these points, the Law differs on several points. Notably, there is no requirement that single source procedures be notified in advance and a bidder is not notified in case the bid is rejected or otherwise unsuccessful. At the same time the Law does not require any publication at all in case of cancellation of procedures. Finally, and as a probable consequence of the limited development of e-procurement, the Law requires that any electronic communication must be followed up/confirmed via paper-based means.
- When it comes to review procedures the Model Law puts emphasis on allowing complaints concerning any decision of contracting entities and on ensuring essential procedural rights for those wishing to challenge such decisions. On these and other points the Law falls significantly short of requirements. Thus, there are limits on what can be challenged and for example choice of procedure and the use of domestic preferences cannot be challenged. Access to records /other information and other procedural rights are not ensured and there are no requirements to the content of the review decision. Finally, the Law does not establish a standstill period to facilitate complaints before contract signature and there is in terms of institutional structure an excessive concentration of complaints handling supervisory functions, including review of complaints, within one entity, namely the Ministry of Finance.
- The Model Law is finally setting up fairly detailed requirements to the recording of decisions and actions continuously throughout the procurement process. Such records will need to be available to the parties involved in the procurement in question and certain parts of the information recorded will also need to be made publicly available. The obligation to record thus essentially provides a basis for effective monitoring of procurement and ensures the position of parties in review procedures. Ultimately, this also increases accountability of procuring entities. On these points the Law is not allowing public access to any information recorded during the procurement process. The new web portal will result in publicity of some of this information but there are no means for ensuring that the information is up to date and for ensuring that certain information can be kept confidential, where required.
- Extend the scope of application of the Law by reducing exemptions, analyse the efficiency and necessity of the existing preferential arrangements.
- Reform of various aspects of the rules on procurement methods, evaluation criteria, technical specifications, negotiations during the tender process, notifications to participants in the procurement process and international publication of procurement notices.
- Analyse the possibilities for and market consequences of implementation of framework agreements, e-procurement procedures and the general use of electronic means of communication.
- Introduce more detailed requirements governing the protection of authenticity, integrity and confidentiality of submissions and other information.
- Reform of the review procedures to expand the range of decisions subject to challenge, introduce procedural rights and establish a standstill period during which the contract may not be concluded.
- Ensure timely recording of all decisions made in the procurement process and access of stakeholders and the general public to essential information about procurement procedures.