Correlation of (non) applicability of the Penal Provisions to the Law on Public Procurement in procedures for Concessions and Public Private Partnership In the Republic of Macedonia

Nikola Tupancheski; Violeta Shakleva

Nikola Tupancheski Univesity "Cyril and Methodius"- Skopje, Faculty of Law, Macedonia
Violeta Shakleva MSc, Head of Public Procurement Sector, Goce Delcev University, Shtip

Abstract

Public private partnership in the Republic of Macedonia is regulated by the Law on concessions and public-private partnership. But under this Act during the procedures for public-private partnership shall apply the provisions of the Law on Public Procurement. Thus, the provisions of the Public Procurement Law relating to procedures for the award of public works contracts and public service shall apply the procedures for awarding contracts for the establishment of public-private partnerships. The procedures for awarding contracts to establish public-private partnership, the public partner implements as an open procedure, restricted procedure, negotiated procedure with prior publication of a contract notice, or a competitive dialogue, in accordance with the terms and in the manner provided in the Law on Public Procurement. This means that the provision of the Public Procurement Act is mandatory when performing procedures for public-private partnership.

The Law on Public Procurement has changed several times .Recent amendments to the public procurement led to the introduction of penal provisions. For some incriminations are predicted sentence of 6 months to 5 years. By introducing these new criminal provisions, no attention was paid to whether these incriminations can be applicable in relation to the procedures for public-private partnerships that are conducted in accordance with the public procurement rules.

Neither the laws nor regulations or in theory and practice there is no distinction as to which provisions of the Public Procurement Act is inapplicable in the public private partnership. It is necessary to make such a distinction for reasons that procedures for public-private partnership are implemented by the Public Procurement Act, but certain provisions of the Public Procurement Act are not applicable in the public private partnership implemented under this law.

Some of the provisions that are inapplicable are the penalty provisions (significant portion of the penalty provisions). The purpose of this paper is to show that most of the penal provisions (provided in the Public Procurement Law) are applicable in procedures for public-private partnerships (which are implemented according to the Law on Public Procurement), that is required by the Law on Public Procurement to specify exceptions for the use of certain provisions in the procedures for public-private partnership. From the paper in conclusion follows that the penal provisions contained in the Criminal Code of the Republic of Macedonia and procedures applicable to public procurement procedures for Public Private Partenership, leaving the application of this law as lex generalis whether to clear all legal dilemmas and implement the necessary exceptions.

Key words: correlation, penal provisions, concessions, Public Private Partnership

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Author Biographies

Nikola Tupancheski, Univesity "Cyril and Methodius"- Skopje, Faculty of Law, Macedonia

Faculty of Law, Univesity "Cyril and Methodius", MAcedonia

Violeta Shakleva, MSc, Head of Public Procurement Sector, Goce Delcev University, Shtip

MSc, Head of Public Procurement Sector, Goce Delcev University, Shtip, Macedonia

References

Tupancheski, N: Partial changes to the Criminal Code and their impact on the protection of the rights of citizens and legal entities - whether a integral new Criminal Code is required, Business Law No.29, Association of Lawyers of the Republic of Macedonia, Skopje 2013 p.23,(published inMacedonian language);

LAWS (“OfficialGazetteoftheRepublicofMacedonia”)

Law on Concessions and PPP(OfficialGazetteNo. 6/2012)

LawonPublicProcurement(OfficialGazetteNo.136/07)

Law on Amendments and Modifications to the Criminal Code (Official Gazette No.19/04)

LawonAmendmentsandModificationstotheTheLawonPublicProcurement (OfficialGazetteNo.130/08, 97/10,53/11, 185/11,15/13)

LawonAmendmentsandModificationstotheTheLawonPublicProcurement (OfficialGazette No.148/13)

LawonAmendmentsandModificationstotheTheLawonPublicProcurement (OfficialGazette No.28/14)

LawonAmendmentsandModificationstotheTheLawonPublicProcurement (OfficialGazette No.43/14)

BYLAWS(“OfficialGazetteoftheRepublicofMacedonia”)

Ordinance for the content of the feasibility study for the justification of the concession for goods of general interest or of the public private partnership,(OfficialGazetteNo. 44/2012)

Ordinance on the content of the agreement for establishment of PPPand the agreement for concession of goods of common interest(OfficialGazetteNo. 44/2012)

Ordinance on the form and content of the form for the intention of the private partner to grant agreement for the works to third parties(Official GazetteNo. 44/12)

Ordinance for the form and the content of the announcement for awarding an agreement for establishment of PPPthat is realized as a concession for public work or as a concession for public service(OfficialGazetteNo. 44/2012)

Ordinance on the form, content and manner of keeping the register of granted agreements for establishment of PPPand for the form and content of the form of data for the granted agreements for establishment of public private partnership (OfficialGazetteNo 44/2012)

Ordinance on the form and content of the report for the started, but not completed procedure for granting of the agreement for establishment of public private partnership(OfficialGazetteNo. 44/2012)