While Parliament’s primary purpose was to extend the municipalities’ term of office during Tuesday’s session, the legislature approved a bill seriously amending the new public procurement code (law no. 244/2021), which was passed almost two years ago and began to be implemented last July.
Notably, the Lebanese Forces (LF) and the Kataeb were absent from the parliamentary session.
The proposal briefly passed through the joint parliamentary committees without being discussed but was endorsed by MPs Ali Hassan Khalil (former finance minister affiliated with the Amal Movement), Jihad al-Samad (Sunni independent), and Alain Aoun (Free Patriotic Movement).
According to a report finalized in recent days by the Finance Ministry’s Institut des Finances Basil Fuleihan, the amendments greatly affect the public procurement code in terms of ensuring transparency and free competition.
An ambiguous signal
Former MP Yassine Jaber (Amal) chaired the parliamentary sub-committee that worked on the 2021 law for about a year and a half.
Jaber told L’Orient-Le Jour that he regrets that “the amendments made were not seriously discussed either in committee or by the plenary assembly.”
Jaber also considered that this vote risks sending an ambiguous message to stakeholders, like the International Monetary Fund and other international supporters of Lebanon, calling on the ruling class to launch reforms.
In a tweet, LF MP Georges Okais went as far as to claim that Parliament had “distorted the only reform” it had managed to pass in recent years in an “unconstitutional” parliamentary session, going so far as to call the MPs that attended “criminals.”
According to an anonymous judicial source, “The numerous amendments were introduced through a law taking on the character of double emergency, under a single article, which is in itself irregular.”
Another proposal, previously tabled by LF MPs Ghada Ayoub, Fadi Karam, Razi al-Hajj, George Adwan, Ghassan Hasbani and Nazih Matta, was presented during this session, but was not retained.
The bill aimed at modifying the composition of certain committees established by the Public Procurement Code.
The timing of the adoption of these amendments also raises questions.
In recent weeks, the ministry ended up reneging on a mutual agreement for the construction of a new terminal at Beirut Airport. Also, a tender for the management of postal services had to be re-launched after the Public Procurement Authority (PPA) pointed out irregularities in the bid submitted by the only company that had applied.
An Institut des Finances Basil Fuleihan report, which was prepared before the bill was voted on, lists the amendments to the proposal and the risks they present.
· A first amendment to Article 7 concerns the introduction of prerequisites for non-Lebanese companies to have access to bidding documents. With this amendment, a company wishing to participate in a public tender must first obtain a certificate of eligibility issued by the Ministry of Economy and Trade, certifying that it is not in violation of the 1955 Israel Boycott Law in force. The amendment does not specify the mechanisms for publishing decisions and the means for appealing or challenging such decisions, which could serve as a lever for discrimination.
· Another addition to Article 7 included in the law the obligation to specify the economic beneficiaries of the candidates — a modality already provided for in the tender documents of this type — but without specifying an application mechanism.
· Section 11 has also been modified. First, the deadlines for submission and publication of annual procurement plans were changed so that these plans could be published only three months after the beginning of the fiscal year. Secondly, the security apparatuses, the police, and the army were exempted from any obligation to plan and publish their procurement plans, knowing that these institutions are major purchasers. This amendment contradicts the budget planning process and no longer allows the Finance Ministry to have timely visibility of funding projections. It also limits the visibility of public purchasers’ needs by economic operators and more generally restricts access to information.
· The amendment to Article 19 now requires that the criteria for pre-classification and pre-qualification of suppliers, firms and service providers be defined by the Public Procurement Authority, in collaboration with the institution initiating the procurement. It also requires the authority to validate in advance pre-qualification criteria for each procurement operation. In doing so, the MPs have not only granted the authority a prerogative that obliges it to interfere in the awarding process, whereas its primary role is to supervise from a distance and in a neutral manner. But they also reintroduced the practice of “classification,” which was revoked in 2021 and is in contradiction with international competition standards. The means of recourse in case of prejudice are not specified, among other shortcomings.
· The amendment to section 46 grants back the public sector the possibility of competing with the private sector in over-the-counter markets.
· Finally, the amendments to Articles 100 and 101 have distorted the process for the composition of the Tender Committees and the Goods, Services and Works Acceptance Committees that are created in each institution that has the capacity to issue an order or contract. The requirements that these members be selected on the basis of professional competence and a criminal record check were removed and replaced with undefined criteria of “prior experience” and others to be specified by the PPA.
This article was originally published in French in L'Orient-Le Jour. Translation by Sahar Ghoussoub.