After what is tendered? To access to public contracts and money was equal for all interested companies and to be able to buy their services cheaper. Because if the competition takes off a few volunteers, you can choose a good offer for a reasonable sum. So much theory that in our detached from practice.
OLAF, the European Food Safety Authority. Fraud, in a recent report on irregularities in public procurement has estimated that in Poland, the probability of corruption concerns 19-23 per cent. rozpisywanych tenders, which translates into 40 billion zł (in recent years the public procurement market amounted to approx. 160 billion zł). It’s hard to believe. But only until closer look at the system of control over public procurement. Because it is a leaky as a sieve.
– When flying heads? If the case is political, if power is changing and people want sczyścić predecessor, if the case is handled the police or the CBA and if you write about the media. That’s when a ustawki, as far-fetched TOR-y (For details and terms of reference) for circumventing the law and giving contracts negotiated fly head. But not always. Because usually reprimand or warning. Or there is no response, because in the end before the show to blame a particular official, it takes years and long ago everyone forgot what it was about – an employee of one of the ministries, which have recently been a lot of trouble with public procurement, says, does not beat around the bush.
327.81 zł penalties
71 million zł – for such a sum totaled four contracts signed in 2008-2009 by Projects Center and the IBM corporation, which has committed itself to creating an important element of e-government – PESEL2 register. In 2011, the. Scandal broke, because it turned out that at the conclusion of contracts broken the law, there were also suspicions of corruption among officials. Two years later, the Public Procurement Office (PPO), following completion of the agreement with IBM, said that an order for PESEL2 has been specially divided by a Government Projects Centre into smaller pieces to circumvent the law and the contracts give every time the same company, that IBM . Thanks to this division of the American company got the first contract with the free hand (it was so cheap that it was subject to tender). Except that by doing it did not provide copyright to the system, so everyone would get a new contract without competition, because it was the only company with permission to change the system. 15 months ago PPO directed to the court a lawsuit for cancellation of the entire contract. But seven years after signing the first contracts and four years after the outbreak of the scandal of court decisions is still not in sight.
zł 22.2 million allocated in 2010. Ministry of Justice to create a new accounting system and personnel . The Ministry organized a competition that had to emerge the best deal. The prize for the winner was an invitation to negotiate – and that negotiations with the free hand, without a tender. The competition took off four companies, and the most points won the company the S & amp; T Services. And she is automatically in 2011. Signed a contract to build the system, provision of equipment and training of personnel. At the end of 2013. Way to release more than 22 million zł interest in the PPO, which assessed that the Ministry of Justice broken the law. Because given the sum it was so large that it should be tender. Past year-plus, and for the cause still no one answered. Competition at the request of the Central Bureau of Counterterrorism interested in the prosecutor’s office.
544 thousand. zł issued without tender in June 2011. The Supreme Court’s website and modernization of the intranet (internal network). After the DGP described in this controversial order, the PPO conducted its audit. And he found irregularities, because the Supreme Court – contrary to how he explained – had no right to spend so much money without a tender. SN appeal against the results of the checks was rejected by National Board of Appeal at the PPO. So is every reason to draw the consequences were. And what? Four years after the signing of this strange agreement no one in the Supreme Court was not punished. Although the OPP took the case to the competent ombudsman finance discipline, but was rejected in the second instance procedural grounds. Besides, in the first instance, although it was guilty of three officials (chief of staff of the first President of the Supreme Court, the office director and chief science officer. Procurement) for having “acting together (…) violated the public procurement law,” it was imposed on them zł 327.81 just after the penalty. READ MORE ON THIS TOPIC & gt; & gt; & gt;
After repeated by us in recent weeks questions about the course of the case, the PPO unexpectedly two weeks before the 4-year period of limitation has decided to file a lawsuit against the Supreme Court for cancellation of the contract. But as experts estimate, justice judgment may take another 2-3 years. READ MORE & gt; & gt; & gt;
37 processes for 10 years
These three cases concern computerization, because the plot most urgently watching. But just ask the experts – or elsewhere with the extraction of the consequences for the set, fictitious and sometimes even corrupt procurement is better, you can hear these opinions: – Oh, touch your subject, which no one wants to touch – sighs Dariusz Ziembiński, an expert. tenders KZP Advisory Group.
– Without exaggeration, after all this, what are the effects of the control of tenders, it can not be nearly as slippery?
– This is because for years we operate in a fictional system. Everything is done to persons involved in irregularities in public procurement have peace of mind – says the expert. And stresses that, while nearly 10 percent. Polish GDP passes through the public procurement market, it is really nobody is interested in its real control.
Agata Michalek-Budzicz, an expert in. public procurement, working as an analyst for control institutions only throws up his hands: – On the one hand racing officials for the purchase of a few hundred dollars, to which there have not earned any number of tenders, on the other hand allows to conclude contracts worth millions that are not accounted for. Because even if there is control and reveals irregularities at most serial employee will lose their jobs. Serious consequences of a rarity – swears.
Even they are surprised when they learn how very rare. From the data that I collected shows that since 2005. President of the Public Procurement Office asked the court to just 37 times with an action for annulment of a contract resulting from a breach of the tender. Matters little, and judgments in line with the expectations of the office even less. For a decade they collapsed (not always legitimate, because in some cases the appellate proceedings are ongoing) only 22. – This is beyond belief. So an annual average of only 3-4 times appear for the President of the PPO conditions for this to apply for cancellation of the contract. But every year is found a few dozen tendering procedures serious infringements – Michalek-Budzicz several times inquires whether you really are so modest figure.
How much is a modest number, best seen in comparison with the number of reported violations of the law. Let’s look at years of 2008-2014, because it was time to communicate and accounting for tenders from the last EU budget perspective. For the Polish hit billions of euros, most of which could be taken only through public procurement. At that time, the PPO submitted to the courts 30 claims for annulment of the contract, of which judgments as evidence of guilt resulted in 19 investigations. At that time, PPO conducted 1,487 inspections and 290 ran into serious violations of the law. So problems related to one-fifth of audited contracts.
A lot, but it’s nothing compared to ad hoc controls. Contracts below 10 million for goods and services and 20 million euros for works need not be checked. PPO checks the legality of the process only at the request of the investigating authorities, companies, institutions participating in the contract if the same authorities. And as it turned out, since 2008. At 306 until such audit found 179 cases of serious breach of the law. So irregularities were more than half of the cases. – Every second control ended up proving breach of the law. It’s really terrible. Because it means that in these smaller auctions theoretically – theoretically, because the order of a few million is not small – are common unfair play – alerts Michalek-Budzicz.
– And how many requests for emergency control of the PPO rejected. Because that rejects very much, complains the whole environment – notes Peter Trębicki lawyer, specializing in public procurement law. And he’s right. As we learned, but in 2012-2014 the Public Procurement Office has rejected over 2.5 thousand. (Sic) such applications. – Just think how much they would show further irregularities – thunders Dariusz Ziembiński. – Some time ago we concluded four inspections at various auctions that raised our objections. And all got the same rejection response directly from the distribution – says the expert.
PPO defends himself, explaining that the processes for cancellation of the contract is not the only method of punishment for breaking the law. – In cases where as a result of the analysis of the office of the president decided not to bring an action, are used in other prescribed penalties for identified violations of the law. We are talking about a financial penalty as well as directing the notification to the competent ombudsman for public finance discipline – to Anna Łagocka of PPO.
From these penalties is a little better. For instance, in 2014. Public Procurement Office has imposed 31 fines (for the most part with a height of 3 thousand. Zł, but one with a height of 150 thousand. Zł), of which 22 failed to enforce.
Applications to finance discipline Advocates also addressed a lot. Since 2004. Such matters have accumulated 433, of which 208 in 2013-2014, because then closed fiscal perspective. So at the last minute a lot of auctions organized so as not to lose money. But let nobody be fooled by the sheer number of targeted cases, because the decision to punish the guilty had fallen for 10 years, only 138. And at least he knows many of PPO, as many as 83 cases the office has not been informed by Advocates their decision.
Years of the judgments
But the problem is not so much criminal statistics, but rather the excessive length of court cases. – Lawsuits for annulment of contracts are complicated and require a lot of time-consuming hearings and other procedural steps, eg. The preparation of expert opinions. It all means that court proceedings since its initiation to final completion takes several years. The experience of the legal department of PPO indicates that the average duration of the process in litigation over the validity of the agreements is approx. 3-4 years – says Łagocka.
– Before changes the law of 2009. functioned construction of the absolute nullity of the contract. When the order was clearly violate the law, the court notified by the PPO stated almost automatically void the contract. So sometimes we managed to still cancel the contract during its execution – sighs Michalek-Budzicz.
These problems, according to people connected with the public procurement market is a result of poorly functioning control camera . The hearings before the National Board of Appeal, which is to decide on the merits of any complaints performers or participants in the proceedings, as well as decide whether to appeal against the results of the checks – are not recorded, that it is not possible insight into what has happened to them. The minutes of these meetings are several sites where one session lasts for an hour or two. Similarly, there are reasons for short sentences, not really so also reflect the events of the meeting.
The National Boards of Appeal, or rather the unpredictability of its arbitrators, experts generally complain. – Sometimes you ask, what do they drive. For example, we have the KIO, which shows that the President of the PPO, making very critical scrutiny stigmatizing ustawka performers at one of the larger tenders, he was wrong. So the inspectors, although ustawki mechanism is described in detail, showing how few companies have agreed jointly offer, split into references to smash worth 700 million zł contract, but they were wrong? – ironically Michalek-Budzicz. It’s loud ustawka concerned the tender for eHealth system.
18 controllers
Experts explain that the “strange” KIO opinions of arbitrators are not the only source of problems . – raised the threshold expenditure to which you do not have to announce the tender from 14 to 30 thousand. euro. At the same time increased the fee for submitting a complaint to the KIO. Not only can you spend more money with the free hand, but also decreased the chance to control before the tender allotment – notes lawyer Trębicki. And he adds that since the amendment to the Act – Public Procurement Law in 2009. Only the President of the PPO has the right to file a court action against the tender or contract. – And not really enjoys this privilege. On average, annually performs 50 ramp inspection, or an average of one per week – explains the lawyer.
nods his other experts, stressing that Poland is not transparent auctions, but their speed settlement is seen as a major advantage of public procurement. – President of PPO on the following conferences still shows the same slides and calculation, which penetrates it faster than ours tenders are carried out only in Estonia and Lithuania – says Ziembiński. – And so it is, but what it comes from? Well, at least from the fact that the processes of explaining the failures are rare.
– Billions of gold leak by leak in a system that is not adequately controlled. You have to finally realize that it is our money and if they were issued in a transparent manner if there were more checks carried out before signing the contract, if prevented widespread contracts with the free hand, it would be this huge savings for us all – explains Agata Michalek-Budzicz. Emphasizes that today it is hard even to count the losses they assume because of irregularities and fraud in public procurement.
– Without sealing system, we can not expect that he himself repair. A seal can occur in one way: it is necessary to increase the number of checks, preferably by creating provincial OPP cells that will temporarily investigated what happens in tenders organized by local governments. Then in a quick drawing the consequences, and this regardless of whether the breach of the law consisted of a simulated auto auction for you alderman, or on the release of a free hand half a million zlotys by the Supreme Court – adds the expert.
For now, these controls can not expect. The reason is trivial, as is recognized PPO: in the key ad-hoc control department is working only 18 controllers and three chiefs. In this modest group are to deal with checking a market worth 160 billion zł.
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