The title of this text clearly points to the problematic issue of public procurement in Bosnia and Herzegovina and although it is paradoxical, it still seems to be the most suitable description of the issue. However, in the light of the drafting of the new framework legislation in the area of public procurement, there were serious expectations that the previous unsatisfactory and unfavorable (not to say bad) solutions will be successfully replaced. Of course, the entire process is still ongoing, and the Public Procurement Agency of Bosnia and Herzegovina has put in place the Draft Law on Changes and Amendments to the Public Procurement Law in the eConsultation Web Applications (https://ekonsultacije.gov.ba/), and invited all interested parties to submit their suggestions and remarks via the said application in the period from 07.06.2018 to 06.07.2018. Whether the public was aware of the possibility, remains as an open question, but it is expected that at least the professional community and those whose response was quite valuable managed to use this opportunity, primarily for the general but also individual interest.
It is clear from the available draft that certain provisions have been precisely specified, some terms more clearly defined, but there are also some novelties. However, some existing problematic provisions were not substantially changed, which includes the issue of the disputed fee/charge for appeal and we have pointed out this problem in the previously published article (“Administrative fee or nothing”).
Of course, it remains to be seen how the final text of the law will be read, but the most important is that these changes to the law produce essentially good results – which is the responsibility of all those engaged in the process of drafting and passing laws, but also all those who are empowered and/or able to indicate better, more practical or any legal solutions as well as to recognize bad solutions.
The main problem in the dynamic system of public procurement is an issue of the relationship between the contracting authorities and the bidders and kind of the tendency to consider them as enemies. It has to be overcome for a more functional and, in short, a better system of public procurement. It is necessary to enable the understanding that in the system of adopted rules and procedures their respect for each other might lead to a more efficient public procurement procedure, where cooperation, tentatively, of contracting authorities and bidders might ensure the most efficient spending of public funds, and in doing so, a fair market game between the bidders, avoiding underpricing and enabling rational competitors. The use of public funds is a syntagma that very often provokes discussions to which we are all extrimely vulnerable, since some examples from the past show brazenness in the public procurement segment.
While we are waiting for amendments to the Public Procurement Law, we hope that the final text of the same will provide proper, not just cosmetic solutions for problems that have caused severe headaches to all participants in the public procurement process, regardless of their roles in the past. It is certain that a serious analysis of the new legal provisions is yet to happen. However, there is still enough time for corrections.
Author: Milica Karadza