Increase Public Procurement Transparency (MD0061)

1.1. Migrate more public domain data from the private area of the e-Procurement system to the public area, according to the list of public data fields, and ensure their availability in an automated way through the API (Application Programming Interface)
1.2. Piloting publication of information on public procurement planning and contract implementation, linking information from the planning and implementation phase to information on the other stages of the procurement process
1.3. Develop and implement an electronic procurement transactional system based on the principles of the open contracting standard, with the ability to collect and publish information at all stages of the procurement process
1.4. Extending the list of contracting authorities bound to initiate all procurement procedures through the electronic system
Responsible institution: Ministry of Finance and the Public Procurement Agency
Supporting institution(s): State Chancellery (E-Government Center); Central Public Administration Authorities
Start date: December 2016 End date: 2nd quarter 2018

1a. Increase public procurement transparency

Commitment Text:

Title: Increased Transparency of Public Procurement

1.1. Migrate more public domain data from the private area of ​​the e-Procurement system to the public area, according to the list of public data fields, and ensure their availability in an automated way through the API (Application Programming Interface)

1.2. Piloting publication of information on public procurement planning and contract implementation, linking information from the planning and implementation phase to information on the other stages of the procurement process

1.3. Develop and implement an electronic procurement transactional system based on the principles of the open contracting standard, with the ability to collect and publish information at all stages of the procurement process

1.4. Extending the list of contracting authorities bound to initiate all procurement procedures through the electronic system

Responsible institution: Ministry of Finance and the Public Procurement Agency

Supporting institution(s): State Chancellery (E-Government Center); Central Public Administration Authorities

Start date: December 2016 End date: 2nd quarter 2018

Editorial Note: For the purpose of the IRM report, commitment one was broken up into two separate commitments (see details in the General Overview of Commitments section).

Context and Objectives

In May 2016, a new law on Public Procurement entered into force. The law transposed the 2004 EU Directive on the coordination of procedures for the award of public works, public supply, and public service contracts, and partially transposed two more EU Directives from 2014 into national law.[Note87: Transparent Public Procurement Rating, Moldova, https://www.tpp-rating.org/page/eng/country/moldova] Despite these legal changes, however, the new law did not improve the transparency framework of the public procurement system: procuring entities are still not required to publish or provide full access to all procurement documents.[Note88: TPPR Implementation Assessment, https://www.tpp-rating.org/public/uploads/data/7/AOIL/5914b9f9b886fPPL_Implementation-Assessment-Moldova.pdf] According to the results of a 2015-2017 monitoring activity conducted by the NGO IDIS Viitorul, the level of public procurement transparency was low for the majority of the 60 local communities and 32 districts monitored.[Note89: http://localtransparency.viitorul.org/]

The four activities outlined in this commitment were originally foreseen in the context of the Public Procurement System Development Strategy 2016–2022[Note90: The law, http://lex.justice.md/md/368482/], and subsequently included in the OGP action plan. The first commitment activity will continue the ongoing migration of private data (or data with limited access), located in the Public Procurement State Registry (SIA RSAP), the existing e-Procurement system, and ensure their availability through an Application Programming Interface (API).

SIA RSAP was launched in 2012 and includes a public field component which provides limited, general information on public procurement.[Note91: State Registry of Public Acquisitions, http://etender.gov.md/index] As stated in the commitment text, however, the difference between private and public areas of data is not clear. After clarifying with the implementing agencies, the IRM researcher understands that the private field (where the actual public procurement process takes place)[Note92: SIA RSAP Manual https://tender.gov.md/sites/default/files/document/attachments/Manualul%20Utilizatorului%20SIA%20RSAP%20%28partea%20I%29%20v4.0.pdf] is accessible to users of the system (registered users, who use the digital signature for authentication), and it also contains data which cannot be disclosed, according to the Law on private data protection.[Note93: The law, http://lex.justice.md/md/340495/] The data will be made publicly available on opencontracting.date.gov.md.[Note94: The open contracting webpage was developed by the Public Procurement Agency (PPA) in partnership with the E-Government Center and the World Bank. The website features various functionalities which allow export of data in open data format. Data users can explore, monitor, download and re-use data published on this website which covers government related contracting data collected by the PPA. The website is constantly updated with public procurement information.]

Second, the government aims to publish information on public procurement planning and contract implementation, based on open contracting standards[Note95: Open Contracting Data Standard, http://standard.open-contracting.org/latest/en/], and link the information to different stages of the public procurement process. Though not explicitly stated in the action plan, it is understood by the IRM researcher (after performing additional desk research and interviews) that the information will be published in the e-procurement system, Mtender (see commitment activity 1.3 below).

Third, the government aims to continue to develop and implement MTender,[Note96: The financial support for Mtender is provided by the European Bank for Reconstruction and Development, and the European Union. In September 2017 the Western NIS Enterprise Fund (WNISEF) also joined the efforts, http://mf.gov.md/ro/content/ministerul-finan%C8%9Belor-va-beneficia-de-un-instrument-electronic-pentru-analiza-%C8%99i] an electronic procurement transactional system, which will collect and publish data from all stages of the procurement process. The bill on the concept of the system was submitted for public consultations on the particip.gov.md, the governmental public consultations online platform, on 18 December 2017.[Note97: Government public consultations platform, http://particip.gov.md/proiectview.php?l=ro&idd=4825] Mtender is a cloud-based multi-platform (which includes three commercial platform operators[Note98: E-licitatie, achizitii private si publice, yptender.md]) electronic procurement system, which uses open source software. The system employs the Open Contracting Data Standard (OCDS[Note99: Open Contracting Data Standard, http://standard.open-contracting.org/latest/en/]) and includes an open source/OCDS Central Database Unit, the website http:/mtender.gov.md, and three authorized electronic procurement platforms owned by private companies. The Central Database Unit of the MTender System will be owned by the Ministry of Finance.[Note100: Mtender, https://mtender.gov.md/procuring/index]

Fourth, the government plans to extend the application of the MTender system to at least 85 percent of contracting authorities (public authorities). However, it is not clear how a country-wide expansion will take place and by which date.

The overall specificity for this commitment is medium. While not stated explicitly in the action plan text, the activities in this commitment (and Commitment 1b) are referring to the same overall process and its relevance to MTender is understood among relevant stakeholders. However, there are ambiguities in the commitment text that the IRM researcher was unable to gather more information on. For example, it is not clear if the API system from commitment activity 1.1 (the system used for SIA RSAP) will be integrated or linked to the new Mtender system.

The commitment is relevant to OGP values of access to information and technology and innovation. By launching a transactional e-procurement system (MTender), which opens all procurement stages (planning, tender, contracting, implementation) to the public, and by ensuring the use of the system by all public authorities, the public procurement process will be more transparent and efficient at all stages.

If fully implemented, the potential impact of this commitment is moderate. Compared to the pre-existing system, developing and implementing Mtender could significantly contribute to the sustainable accountability of public authorities and bidders. Furthermore, extending the use of this system to a majority of the contracting authorities represents a major step forward in making public procurement more transparent. However, the ambiguity in the action plan makes it difficult to assess the potential impact of the other listed activities.

Furthermore, civil society representatives[Note101: Idis Viitorul Think Tank, Expert Grup NGO, European Business Association.] interviewed by the IRM researcher consider that this is an overly optimistic plan for the action plan timeline: many activities (including legislative changes) linked to the launching of the system are still ongoing (Spring 2018), and the scale of the activity may not be realistic given the action plan timeframe.

Completion

Due to the late approval of the action plan (Government Decision of 28 December 2016, no. 1432), most actions in this commitment were delayed. Delays are largely caused by cross-cutting issues, such as frequent staff turnover across the government and understaffed departments, which has impacted institutional memory, but also related to the complexity of the legislative, technical and implementation aspects of the MTender system. Overall, this commitment’s completion is limited.

Data from the PPA’s current e-procurement system (also from the private module) were migrated to opencontracting.md, where the information on tenders, contracts, and the contracting authorities are provided in a more visually appealing and user-friendly way (1.1). The completion of the commitment activity was assessed based on the time stamp of the published data on the respective website. Since this is an ongoing activity, however, it is difficult to gauge how much of the data was migrated before and after the implementation of this action plan.

There is limited information regarding the pilot publication of public procurement information. According to the Official Gazette[Note102: Fiscal Monitor, https://monitorul.fisc.md/editorial/mtender--un-nou-nivel-al-achiziiilor-publice-in-republica-moldova.html] and the Ministry of Finance, the piloting[Note103: Piloting the system means that these institutions use the MTender system for all stages of the public procurement process: notification, tender, assigning of contracts, etc.] of the MTender system started in January 2017 (1.3). The government bodies piloting the system include the Ministry of Finance, Public Procurement Agency, State Tax Authority, Customs Service, Financial Inspection. As the legal framework, which will make the MTender mandatory for all public authorities, still has to be developed and implemented, participation is currently (2017 - beginning of 2018) voluntary. In May 2017, the Ministry of Finance encouraged public authorities to pilot MTender[Note104: Mtender pilot, https://mtender.gov.md/uploads/news/files/590ad5744364f.pdf] and, according to the MTender statistics,[Note105: Mtender, Leading by example, https://mtender.gov.md/] 148 public and private entities have to date (April 2018) piloted the system. No other concrete actions are known to have been taken so far to extend the use of the system to all public authorities (activity 1.4).

During regular information sessions organized by the PPA, the participating public authorities were informed about the new system which will be launched (see more details on the dissemination of information in the assessment of the next commitments’ activities, which are linked to these ones). At the time of writing (December 2017–January 2018), negotiations to secure financial support from the European Union to continue the development and implementation of the system were ongoing. However, since the MTender system is planned as a mixed system (the Central Data Unit of the MTender System is owned by the Ministry of Finance, and the three procurement platforms of the system are owned by private companies), IDIS Viitorul[Note106: Carolina Ungureanu, IDIS Viitorul expert, telephone discussion, June 2018] shared that European Commission experts fear such a system could be too risky. The launch of the MTender system is planned for 2018.[Note107: Fiscal Monintor, https://monitorul.fisc.md/editorial/mtender--un-nou-nivel-al-achiziiilor-publice-in-republica-moldova.html] The fourth commitment activity cannot begin until MTender is launched.

The PPA and the e-Government Center, two of the three implementing agencies indicated in the action plan, stated that they are not aware of the implementation status.

Early Results (if any)

According to stakeholder interviews and independent verification, data presented on the PPA website and opencontracting.md are visually appealing, allowing journalists, researchers and experts to generate different types of data by employing filters and visual aids (commitment activity 1.1). However, according to I. Morcotilo of Expert Group NGO[Note108: Newspaper Ziarul de Garda newsroom group discussion, 27 December 2017; I. Morcotilo (Expert Grup NGO), personal communication, 21 December 2017.] filters on the website are difficult to operate. The expert considers that data manipulation is not very user-friendly and has also confirmed that many public procurement processes are often missing from the website or are published late.

Next Steps

The commitment should be continued in the remaining period of the implementation cycle. Moving forward, the IRM researcher recommends this commitment be carried forward into the next action plan; however, the government needs to clearly identify what it plans to accomplish and clarify which agencies are responsible for implementation. Other recommended modifications include:

· Ensuring better monitoring of the public procurement open data quality.

· Launching of outreach program to engage with working group stakeholders as well as stakeholders who signed the Memorandum[Note109: This memorandum was signed on 30 November 2016 by the Ministry of Finance, the Public Procurement Agency, the E-Government Center, five NGOs, six business associations, and four companies securing the maintenance and management of Mtender, http://mf.gov.md/ro/content/achizi%C8%9Bii-publice.] in November 2016. Ensuring effective communication among stakeholders will facilitate the completion of the commitment activity through constant monitoring of the progress, and by ensuring all stakeholder views are taken into consideration.

· Developing extension and transition plans for all central, regional and local authorities, involving contracting entities, and independent national and international experts in the field. The plans should not include only activities focusing on the technical aspects of the new e-system, but also open government principles and values to secure a genuine transfer to a transparent public procurement activity, and avoid achieving only the digitalization of the process.

· Ensuring potential bidders (private sector) are educated and well-informed about the new system, cooperating in this sense with business associations and expert NGOs in this field.

1.a Increase public procurement transparency

 Commitment Text:

Title: Increased Transparency of Public Procurement

• Migrate more public domain data from the private area of the e-Procurement system to the public area, according to the list of public data fields, and ensure their availability in an automated way through the API (Application Programming Interface)
• Piloting publication of information on public procurement planning and contract implementation, linking information from the planning and implementation phase to information on the other stages of the procurement process
• Develop and implement an electronic procurement transactional system based on the principles of the open contracting standard, with the ability to collect and publish information at all stages of the procurement process
• Extending the list of contracting authorities bound to initiate all procurement procedures through the electronic system

Responsible Institutions: Ministry of Finance and the Public Procurement Agency

Supporting Institutions: State Chancellery [E-Government Agency]; Central Public Administration Authorities

Start Date: December 2016

End Date: 2nd quarter 2018

Editorial Note: For the purpose of the IRM report, Commitment 1 was broken up into two separate commitments (see more details in the General Overview of Commitments section).

Commitment Aim:

This commitment aimed to ensure a more efficient management of public resources through more transparent public procurement. Previously, the transparency of public procurement processes was low as procuring entities (contracting authorities, as defined in Article 12 of the Law on Public Procurement [1]) were not required to publish or provide full public access to all procurement documents and stages. A 2015–2017 monitoring activity conducted by the NGO IDIS Viitorul showed that the level of public procurement transparency was low for the majority of the 60 local communities and 32 districts monitored. [2] The activities outlined in this commitment were originally included in the Public Procurement System Development Strategy 2016–2020 [3], and were also subsequently included in the OGP action plan.

Status

Midterm: Limited

Due to the late approval of the action plan, implementation of this commitment by the midterm was limited. Milestone 1.1 was assessed as completed with ongoing migration of data from the private field of the previous e-procurement system (SIA RSAP) to the public areas in the Public Procurement Agency. The same information was also presented in a citizen-friendly version on opencontracting.md. This webpage was developed with the support of the World Bank in an attempt to provide an interactive presentation of key contracting data collected by the Public Procurement Agency. [4]

Though the new e-system could have been used by any authority, the Ministry of Finance (MOF) tested [5] the new e-procurement system (MTender) for low-value public procurement contracts as of January 2017 (Milestone 1.3) within its subordinate authorities (the Public Procurement Agency, State Tax Service, Customs Service, and Financial Inspectorate). The use of the MTender system was on a voluntary basis for public entities outside the MOF as the legal framework that would make MTender mandatory for all public procuring entities was still being developed during the first year of implementation of the action plan. The legal acts to enforce the MTender system were submitted for public consultations in December 2017. The launch of the new e-procurement system MTender was planned for 2018.

End of term: Complete

As written, this commitment is considered complete.

The new e-procurement system (Automated Information System “State Public Procurement Register (MTender),” called MTender) has replaced the old e-procurement system (Automated Information System “State Public Procurement Register, called SIA RSAP) by law. Therefore, Milestone 1.1 has become obsolete as the old SIA RSAP information system is not used anymore, as it did not comply with the technical requirements of the updated legislation. The old system will be used only for the finalization of procurement procedures initiated before 1 October 2018, while the new e-system became mandatory as of October 17. The interviewed expert from local NGO IDIS Viitorul explained that although a World Bank project provided support to develop an interactive public procurement visualization platform that included additional functions, called opencontracting.gov.md, the system was functioning as an e-registry and not a transactional system, and the information was not provided in real time. [6] The data from this system will be kept as a historical database but will not be integrated into MTender due to the different data format used. The opencontracting.gov.md page is not being updated any longer as currently the MTender system includes at the moment the majority of the information regarding public procurement processes [7].

Extending the application of the MTender public procurement system to all public authorities (Milestone 1.4) required the passage of several legal acts. In this sense several government decisions were issued: Government Decision no. 705 of 11 July 2018 on the Technical Concept of the Automatic Informational System “The State Registry of Public Procurement” (MTender) [8] published in August 2018 in the Official Gazette, Government Decision no. 985 of 10 October 2018 on the accreditation of the electronic procurement platforms of the Automatic Informational System “The State Registry of Public Procurement” (MTender), [9] Government Decision no.986 of 10 October  2018 on the Approval of the Regulation on the functioning of the Automatic Informational System “The State Registry of Public Procurement” (MTender), Government Decision no. 987 of 10 October  2018 on the approval of the Regulation on the request of price quotations for the procurement of goods and services. [10] Additionally, the Ministry of Finance issued five orders [11] in October 2018 covering various secondary legislation aspects. Though this activity was not included in the action plan it represents a cornerstone for the implementation of the commitment.

Since March 2018, the MTender platform has been used for signing both public and private contracts online. [12] Public procuring entities will use in the future (not yet implemented) MTender to register contracts with the Treasury of the Ministry of Finance, as the new e-procurement system integrates this function and allows for the registration to be conducted automatically and within 24 hours. [13] This technical solution is not yet fully functioning. Previously, procuring entities had to travel to a regional Treasury office to register their contracts, which were not valid otherwise.

As of 17 October 2018 (when the amendments to the Law on Public Procurement [14] entered into force), the use of the new multi-platform networking digital procurement service called MTender became mandatory for all public procuring entities. In Moldova there are currently more than 4,000 public authorities (i.e., procuring entities), and by 25 November 2018, 1,080 authorities had initiated public procurement processes via MTender. [15]

The following functions were working at the end of 2018 in MTender: the public procurement plan and notification, the request for price quotations, the open tender procedures [16], and the signing of contracts through MSign (governmental digital signature system). [17]However, MSign is not integrated in MTender. All documents are separately signed in MSign and then uploaded into MTender.

The communications between bidders and procuring entities have been conducted via email and are available on MTender. Finally, signed contracts are uploaded to MTender. Some system functions are still being developed or tested and are not yet available: the e-catalogue, participation of non-residents to tender procedures (as foreseen by the amendments to the public procurement law harmonized to the EU legislation), contract execution, a business intelligence (BI) module, which will allow data analysis and processing, as well as the creation of dashboards, and use of filters.

Though beyond the scope of the action plan, several other actions have contributed to the completion of this commitment (listed here to provide a better overview of the end-of-term context). The legal framework describing the functioning of the MTender e-procurement system (references to these acts are provided above) has also foreseen institutional infrastructure changes. Therefore, the Public Procurement Agency role has changed to include: (1) provision of public procurement legal framework training to procuring entities, as well as to private companies; (2) monitoring of the public procurement processes conducted via MTender; and the old system SIA RSAP (3) development of a certification system for public procurement specialists. Such a specialization does not exist yet but is planned for the upcoming period.

As part of the government restructuring, a new public institution, the Information Technologies in Finance Center (ITFC), was created in 2018. [18] The institution covers the functions, roles and services once provided by three different state enterprises, namely “Fintehinform,” “Fiscservinform” and “Vamservinform” in the areas of public finance, public procurement, and customs and taxes. [19] In the context of the MTender e-procurement system, the ITFC is the technological operator of the MTender system, responsible for the technical functioning of the system, as well as for building the MTender capacities of public authorities. From June to September 2018, ITFC organized training sessions for more than 950 public institutions and authorities, focusing on the implementation of the e-procurement system. According to the government, during 2018 ITFC organized 215 training sessions for 3834 specialists from 2318 institutions. [20] In October and November 2018, the ITFC notified on its website the continuation of the training sessions in both Chisinau and in the regions. The schedule of the sessions is available online. [21]^{, [22]} In parallel, the Public Procurement Agency developed a training schedule for 2018, which included at least five training sessions for businesses, 39 for public procuring entities and one joint session for the private, public and civil society sectors. [23] The ITFC training sessions cover the use and functions of the MTender system, while the training sessions held by the Public Procurement Agency focused on the legal framework aspects, including public procurement procedures, roles and responsibilities within the public procurement process, and general provisions of public procurement in Moldova and other countries.

Milestone 1.4 planned the extension of the procuring entities using MTender to 85 percent, however, the formulation of this activity is not relevant anymore, as once the law came into effect in October 2018, the use of MTender became mandatory for all public procuring entities. Through the extensive training programs organized by the ITCF and the Public Procurement Agency the government wants to ensure that capacities will be built in all procuring entities. Additionally, the three private procurement platforms (see the IRM midterm report for details), which the MTender is currently networking with, provide technical support and training to users upon request. The ITCF, the Public Procurement Agency, and the three private procurement platforms linked to MTender have helplines available for all users.

Did It Open Government?

Access to Information: Major

The Public Procurement System Development Strategy 2016–2020 was developed in the context of the Association Agreement between the Republic of Moldova and the European Union. [24] The strategy foresaw several reforms, including institutional changes, approximation of the Moldovan legislation to European legislation, ensuring transparency, building accountability and capacity, and the development of a new e-procurement system. At the outset of the 2016–2018 OGP action plan, the existing e-procurement system (SIA RSAP) had limited e-functions and was similar to an e-registry, unable to allow transaction functions online. [25] Moreover, according to the 2016 IDIS Viitorul report, [26] there were important public procurement stages which were not transparent, for example, the awarding of contracts and the implementation of contracts. This part of the process was not properly regulated, and public authorities often kept such information out of the public eye. An EBRD regional public procurement assessment in 2011 stated that Moldova needed a new procurement regulatory framework as the one in effect was rudimentary. [27]

The commitment aimed to increase transparency of the public procurement process by opening all the phases of the process, developing the e-procurement system, and ensuring most procuring entities (and, in the end, all) use it. The implementation of the commitment changes government practices in this field in a major way by opening the entire public procurement process, making public tenders fully transparent, and bringing the system in line with international best practices. The stakeholders interviewed during the mid-term and end-of-term reporting period [28] anticipated an increase in transparency and access to information related to procurement processes at central and, especially, at local/regional levels. They believe this represents a great change, as the prior system was more of a registry and, due to the way information was displayed, it did not allow analysis of public procurement data. Furthermore, signed contracts were not public, which made the monitoring of their execution close to impossible. The then Minister of Finance, Octavian Armasu, stated in October 2018 [29] that the new system would allow experts to identify risky procurement processes and to ensure transparency and efficiency of public procurement. [30] Additionally, backing up the efforts made by the government, the deputy general director of the World Trade Organization (WTO), Allan Wolf, stated that Moldova has made great achievements in reforming its e-procurement system. [31] The country ratified the revised WTO Agreement on Government Procurement (GPA) in 2016, [32] and in the same year started the e-Procurement reform project supported by EBRD and the European Union. [33]

Access to information has increased by conducting fully online public procurement processes, starting with the procurement planning up to the awarding of the contracts and their execution. However, in September 2019, expert Diana Enachi has noted that currently (as of September 2019) only the information about the winning bidders (signed and registered on paper, not electronically at the Treasury) are published. Only low-value procurement contracts are published. Other information about the contracts and the contract management phase are not available in the system. [34]

One of the big changes is making procurement contracts public in MTender, as well as their execution (though this function is not yet active (December 2018 status) but is developed). By implementing a fully online e-procurement system, citizens and civil society can monitor and track any public authorities’ procurement activities, with access to contracts, bids and other relevant information. The system allows the monitoring of data throughout the entire cycle and the viewing of all operations and transactions in real time. However, expert Diana Enachi considers that the monitoring of the procurement process by both authorities and civil society is rather limited, considering also that monitoring can be conducted only at the procedural level. [35] Currently, functionalities are being developed so that key players like PPA, the Complaints Agency, the Anti-Corruption Center need to have oversight tools in place to perform mandated functions as prescribed by law.

At the same time, as the use of the system was a voluntary activity before the adoption of the legal framework and its official launch in October 2018, not all procuring entities have used the piloting period of more than a year to learn and test MTender. Expert Diana Enachi from IDIS Viitorul [40] expected procuring entities to be more proactive during the piloting period and considers that due to lack of capacities (including HR) the implementation of the system might be difficult for some entities, especially rural small procuring entities, although free training is available to all. An intensive training program was initiated in 2018 managed by the Ministry of Finance, the Public Procurement Agency and the ITFC.

Carried Forward?

As this commitment was considered completed, it was not carried over to the next action plan. However, Commitment 2 in the next action plan aims to develop and publish reports on public procurement.

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Report content truncated. For remainder, please see the documents at https://www.opengovpartnership.org/documents/moldova-end-of-term-report-2016-2018/