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

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