Lately I've been talking about United Russia (the ruling political party) a bit too much. So let’s go back to the Federal Contract System instead—especially since this is a crucial, you could even say critical, moment for the fate of our annual 5 trillion rubles. Yesterday, the draft law on the FCS, prepared by the Ministry of Economic Development, was submitted to the government, and from there it will go to the State Duma. I wrote about this bill earlier (http://navalny.livejournal.com/622791.html, http://navalny.livejournal.com/624692.html). Let me briefly recap the situation. Everyone who works with public procurement understands perfectly well that the current law on placing government orders, No. 94-FZ (the law under which RosPil also operates), needs major changes. So there are two possible paths forward: improving 94-FZ, as proposed by Russia’s antimonopoly service creating a new law on the FCS, as proposed by the Ministry of Economic Development. At this point, it is more or less clear that the Ministry of Economic Development won this bureaucratic turf war, much to our regret. Kudrin was the last bastion defending Law 94; after his resignation, things got really bad. Well, okay—if it’s a new law, then it’s a new law. But the draft FCS law fundamentally changes the very concept of public procurement: officials are given all sorts of powers, far more depends on their personal choice and discretion, while the scope for procurement participants to challenge their actions is drastically narrowed compared with what exists now. For example, if this bill is adopted in its current form, then neither you, dear citizens, nor RosPil will be able to file complaints about violations in public procurement the way we do now. It will be prohibited. Only direct participants in the bidding process will be allowed to complain. And obviously, direct participants—especially given officials’ expanded powers—will never complain. Why ruin the relationship? Complain today, fail qualification tomorrow. How a de facto ban on complaints is supposed to help make public procurement “more transparent and efficient” is beyond us. What is clear is that life will become easier for crooks. Elvira Sakhipzadovna’s polished rhetoric about how this bill will improve the public procurement system is disingenuous.
We already sent our comments and proposals for fixing these problems to the Ministry of Economic Development during the public discussion they announced (more details are in the posts linked above). We did everything exactly the way the ministry asked. In the proper format and on time. At the end of October, the second version of the draft law was published: http://ideas.economy.gov.ru/ Some of our comments were taken into account, but most of the key disputed provisions remained unchanged. Some provisions were even made worse in a rather sneaky way—they apparently thought no one would notice. For example, in all their public statements, representatives of the Ministry of Economic Development say there will be more public oversight because they are creating some kind of special public councils. In the first draft, those councils had the power of “oversight and enforcement,” but in the second they were left with only “oversight.” You can oversee all you want, but if there is no real power to stop violations, the whole thing becomes meaningless. Our RosPil team put together a summary document that clearly shows what was changed in the second draft in response to our comments, and what was left as is.
You can read it here:
https://docs.google.com/leaf?id=0B88NIYQSdTzhMTAzODIzNjYtYWRiMy00ZjJkLTk4YzktYmJlZWIyYmI3M2Vh&hl=ru
R***osPil still disagrees with the FCS bill as a whole, but since it has now been submitted to the government, we are ready to draft our own amendments.
These are entirely concrete, relevant, and reasonable proposals based on our practical experience.
All of them concern RosPil’s specific focus: preventing and fighting corruption.
We are confident that incorporating them into the FCS law would significantly improve it without in any way affecting the rights of honest contracting authorities.
Here are RosPil’s five proposals for the FCS.
Make it mandatory to grant any person the right to an expedited administrative appeal of violations committed during a tender, regardless of whether that person submitted a bid to participate;
Grant public associations the right to file complaints with administrative bodies and courts in defense of the rights of an indefinite group of persons, by analogy with the Russian Law No. 2300-1 of February 7, 1992, “On Consumer Protection,” and Federal Law No. 7-FZ of January 10, 2002, “On Environmental Protection”;
Provide interested parties with the right to challenge, through administrative and judicial procedures, the improper justification for the choice of procurement object, procurement method, and the initial (maximum) contract price. The bill should also explicitly state that a justification prepared by the contracting authority is deemed proper unless proven otherwise;
Require companies that win a state (municipal) tender and conclude a state (municipal) contract worth more than 20 million rubles to disclose their ultimate owners (beneficiaries) by publishing that information in the unified information system;
Require mandatory declaration of conflicts of interest when submitting a bid, by having the bidder indicate any interest (affiliation) in concluding the transaction (supply of goods, performance of work, provision of services) where there are signs of affiliation as defined in Article 4 of the RSFSR Law of March 22, 1991, No. 948-I, “On Competition and Restriction of Monopolistic Activity in Commodity Markets.”
We will send these RosPil proposals both to the Ministry of Economic Development and to the government.
We will call on all of you to support our amendments as part of a public campaign. This is exactly the kind of “Big Government with feedback” Medvedev says he wants.
If our proposals are ignored, it will mean only one thing: the FCS is being adopted for the benefit of crooks in public procurement, to finally untie their hands and let them loot budget money easily and without strain.
We’ll spell out exactly what needs to be done after we get the government’s first response to our amendments.
Perhaps we’ll need volunteers for self-immolation