“Politicians will not change the system. The system needs to change the politicians. Politicians want to keep the status quo and do not want changes. A functioning judicial system will inevitably deal with politicians and political corruption, so you cannot rely on the “political will” for real change,” this is what former Romanian Justice Minister and current MEP, Monica Macovei, said in Sofia, at a meeting organized by the Initiative Justice for All. Macovei is known for laying the foundations of the anti-corruption reform in Romania which has already yielded tangible results.
Macovei also stressed that in order to lead an effective fight against corruption, it is not necessary to change the Constitution and to wait for the result of serious reforms that only waste time. One must start with individuals, not the system that is always guilty and cited as a convenient excuse for generations of politicians, manifesting themselves as pseudo-fighters against corruption.
In Bulgaria, there are a number of institutions created for the purpose of combating corruption – for example BORKOR (abbreviation in Bulgarian from Fight against Corruption – editor’s note), created with the active participation of German consultants. What is lacking, however, is the will of politicians. And not just lacking – they actively obstruct the existing structures.
The following text on the fate of BORKOR is concrete evidence of how the institutions established to fight corruption are deliberately turned idle under Bulgarian conditions, and how it is proposed to create new ones in their place, and how this is an endless vicious circle of political demagoguery to maintain the status quo.
“BORKOR is being probed, but despite the outcome, it will not be closed,” “Borislav Sarafov (from the Prosecutor’s Office – editor’s note): For us what BORKOR is doing is a “huge secret,” “BORKOR should be closed rather than creating his misshapen twin,” “BORKOR goes in history, “” The “Anti-mafia” MPs accused their colleagues from BORKOR of idleness,”” BORKOR has not yet started working, but it is spending money,” “Despite modest results, bonuses are being handed out at BORKOR,” “BORKOR – a large knot,”,” BORKOR spent 10 million levs, results are yet to be seen”.
This is just a small sample of the headlines devoted to the “enigmatic BORKOR” – in fact its official name is Center for Prevention and Countering Corruption and Organized Crime at the Council of Ministers (TSPPKOP), better known in the media and among the public as “BORKOR”. The pretentious name “countering corruption” provoked great public expectations for quick and concrete results – to see corrupt officials handcuffed, noisy actions against corrupt practices, politicians in jail.
Four years after its establishment, TSPPKOP is seen by the public opinion as a feeder for bureaucrats, with zero results, not contributing to the improvement of the environment in Bulgaria. Why were those millions spent? Why isn’t BORKOR yielding results? Is it being criticized by politicians and experts with reason?
A brief overview of the institution’s website shows that in these four years only one TSPPKOP project has been commissioned by its governing body – the Advisory Board (AB) – on February 22, 2012. The Advisory Board commissioned to the Center the first project ” Decision-making model in the public procurement sector”. The institution’s website says: “The Advisory Board guides the activities of the Center. All activities under the project are subject to the immediate control of the Advisory Board which includes representatives of the Parliament, the government, the judiciary, government agencies and the Head of the Center. The Board shall ensure that the political will be followed exactly, and political and social priorities will be observed”, meaning that political will is reflected in the decisions of the Advisory Board which represents all authorities. So far so good – the idea sounds perfect – experts from TSPPKOP analyze individual sectors and areas for corruption loopholes; make arrangements for their closing and the political will (AB) approves and assigns the Center the task to implement them. Great, but not that great…
On February 6, 2013, the Advisory Boards passed and approved the proposed measures and concrete solutions of BORKOR in the field of public procurement. And it all stopped here. The first Cabinet “Borisov” resigned and the Advisory Board was not convened for over two years. The Cabinet “Oresharski” did not bother to convene the governing body of the Center, but assigned it to perform a preliminary analysis of the anti-corruption Bills of the executive. Some of the proposals were accepted; others – not. The motives of the various agencies to reject the anti-corruption measures of TSPPKOP under their Bills remain secret.
What happened to the only proposals for curbing corruption in public procurement confirmed by the Advisory Board? The government “Oresharski” liked some of the measures – with the amendment to the Public Procurement Act (PPA) in 2014 it “stole” the idea of an “electronic catalog” – the technical proposals to be presented in the form of an electronic catalog, when the subject of the contract is delivery of goods that are standardized. The proposals for publicity and transparency in the provisions for mandatory publication of minutes, records (technical specifications) and additional agreements were also partially adopted. But nobody heard the arguments of BORKOR that their proposals should be implemented complexly and not “cosmetically” and by the piece. The idea of establishing Central Services for Procurement to assist contracting authorities, particularly those in small towns, was rejected. The pre-registration of bidding companies was also rejected – this is a kind of company CV with which it applies for the different bidding procedures, instead of running every time to different counters to obtain the same documents. And it is much easier for the contracting authority to look at the company’s CV and to find out how serious and trustworthy the candidate is. For example, the Construction Chamber in Bulgaria maintains a register of construction companies which is a measure against the gray economy.
Two years later – the second government “Borisov” prepared a new draft of the Public Procurement Act (PPA) which provides for the computerization of the process of procurement through online platforms and for centralized electronic procurement in some sectors. There was no word in the media that this was the proposal of BORKOR from 2013. Then, when nobody was talking about e-procurement, even before the Directive of the European Parliament and the Council was adopted, BORKOR already had its own solution. The BORKOR report further placed an emphasis on increasing the scope of preliminary control of public procurement procedures under PPA which will be included in the new PPA. Now someone else will be decorated with laurels.
Another proposal of TSPPKOP which was previously rejected by the government “Oresharski” and even became an occasion for ironic comments about the Center’s activities is on the agenda today. In March 2014, BORKOR cited a Regulation of the European Parliament and of the Council from 2012 and offered an anti-corruption measure regarding the Law on amending the Preventing and Establishing Conflict of Interest Act. The idea is for contracting authorities in procurement procedures that are distributing European funds to also declare “emotional, party or national commitment” in declarations of conflict of interest.
In the last four years, an advanced information analysis system, which is based on more than 50 analytical methods and techniques, was built in TSPPKOP. Employees from different departments of the central administration are trained by a German expert – author of the methodology of BORKOR. The Bulgarian State has invested significant funding for the construction of the system – working in partnership with a leading German company. The German “V model” was adapted for the needs of the institution – a successful model for the management and control of business processes in the organization. The German Foundation “Konrad Adenauer” supports the completed analytical tool. The BORKOR project received recognition from the prestigious Max-Planck Foundation for International Peace and the Rule of Law (Germany). In a study of the Foundation, dedicated to the fight against corruption in the countries of the Danube Region, the author Leonie Hensgen states: “The BORKOR model cannot be described, however, as a ‘measure’ that refers to a certain act or regulation leading to the achievement of a given objective. As the term ‘model’ would suggest, BORKOR can be defined as a strategy concept that is generally used for the prevention and countering of corruption and organised crime at all levels. Taking the BORKOR model into consideration in the present study, despite its lack of measures, is based on the objective of the study. The BORKOR model is, at the moment, a key element of the fi ght against corruption and the prevention thereof in Bulgaria, thus being of interest for the study at hand. The importance of the model for the neighbouring countries lies in its universal applicability. With slight modifications, it is possible to use the structure of the model in each country.”
It all sounds too good to be happening in Bulgaria, the skeptics would say. They would ask whether the political will of any government would want to break the corruption chains that have been used as a “feeder” for decades. Who would love an institution that wants to sew the deep pockets in which they have been digging for so many years?
Left without a governing body, or so to speak on autopilot, TSPPKOP undertook several projects on its own:
- “Analysis of the regulations and procedures in the field of concessions of the Republic of Bulgaria” Analysts researched the Concessions Act (CA), the Subsurface Resources (SRA), the Black Sea Coast Development ACT (BSCDA), the Water Act and (WA). Serious shortcomings and problems (BORKOR calls them “weak spots”), which are a prerequisite for corruption, were identified:
Gaps, contradictions and legal loopholes which allow selection of concessionaires without a competition were established – seven exceptions exist just in the Concession Act (CA) from 1997 and for this reason concessions have been granted without tender and competition for about 400-500 deposits sites, including also for exploitation of natural resources which are important for the national economy, particularly in mining activities, such as Medet, Chelopech, Elatsite, the coastal line of the national tourism resorts “Rusalka”, “Elenite”, “Dyunite”, part of the campsites in the Southern Black Sea Coast and others. This happened when there was public knowledge of the localities of the deposits in the National Geological Fund.
For some of the concessions granted without a competition concession contracts have been concluded over the years, but to date there are 67 concessions for mining, which have not entered into concession contracts, irrespective of the two deadlines set in the Transformation and Privatization of State and Municipal Enterprises Act (Privatization Law) and the Law on Privatization. By 2008, companies paid only career fee under the Local Taxes and Fees (Fees Act), which is equal to the minimum concession fee. Then and to this day, they do not carry out payment to the State;
For some of them, concession contracts were signed over the years, but it was found that to date there are 67 concessions for extraction of subsurface natural resources, sealed under the privatization deal, which regardless of the two deadlines set in the Transformation and Privatization of State and Municipal Enterprises Act (TPSOMOEA) and the Privatization and Post-privatization Control Act (PPCA), do not have signed contracts for concession up to this moment. In these cases, the enterprises extract the subsurface natural resource under the signed concession contract, but they do not pay a concession fee to the State and no control is exercised over them.
At the moment, there is still lack of competition in the procedure for granting concessions under SRA due to the acquisition of concessions and mining without tender and competition, based on the rights from privatization and registration of a commercial discovery under SRA, with public knowledge of the localities of the deposits in the National Geological Fund.
BORKOR also identified unsystematic, inconsistent approach and contradictions in the legislation on concessions; it found that only 10-15 of 264 municipalities apply the Concessions Act and other municipalities apply other legal means.
The Center’s experts state that are two approaches for management of the beaches – concession under special order through competition for a period up to 15 years and leasing for a period of 5 years, and the presence of two methodologies for determining the concession payment and the leasing price. There is no clear criterion regarding the assessment of the decision if a beach should be subject to a concession or lease. The simplified procedure for leasing, the shorter procedure and periods, and the fewer conditions to the candidates, lead to a preference for leasing the beaches. It was found that there are currently 58 existing concession contracts, of which seven are in the old CA (2006) and have not been renewed. Over the last four years there aren’t any granted concessions for beaches.
There are no standards, transparency and accountability; records of public bodies under Art. 19 of the CA are missing or incomplete; the National Concession Register is insufficient and with poor reliability.
Lack of effective monitoring by public authorities – during the period from 1999 until 2014 an audit of the concession agreement for “Chelopech” has not been conducted. The agreement was included in the audit program of the National Audit Office in 2014, as the audited period is January 1, 2011 – December 31, 2013.
BORKOR recommends to the executive a number of concrete proposals for amendments to eliminate the identified “weak points” – there are 34 proposals for CA, 25 for SRA and 22 for BSCDA. Their aim is to introduce planning, unified State policy, uniform practice, standards and concepts in the field of concessions; to achieve publicity, transparency, accountability, traceability, efficient and quality control.
The Concessions report was submitted to the government “Oresharski” in June 2014. The measures have not been discussed and implemented.
ІІ. Project Analysis of the causes and circumstances creating preconditions for acts of corruption in the execution of the Operational Program “Innovation and Competitiveness” 2014-2020 and a proposal for implementation of measures for prevention of the identified corruption risks
As a result of the conducted legal, procedural and organizational research, BORKOR analysts state that a justified inference for presence of numerous causes and circumstances, potentially facilitating corruption and other criminal activities could be made. The identified causes and circumstances (weak points) are mainly related to the presence of the following general corruption factors:
- collisions and gaps in the legal regulation;
- missing, insufficient or inconsistent mechanism and control procedures of the implementation;
- lack of definitions and/or vague concepts which leave room for manifestation of subjective appraisal and evaluation;
- insufficient or absent possibilities for an objective and comprehensive control and verification of declarations;
- opportunities for acts of nepotism and lobbyism;
- opportunities for concentration and abuse of power;
- opportunities for influence peddling;
- opportunities to taking and enforcing sole or collective subjective decisions;
- presence of bureaucratic and administrative burdens;
- lack of sufficient administrative, material and technical resources, and information resources;
- insufficient level of publicity and transparency;
- underdeveloped system for verification of the integrity of the MA staff and the external evaluators;
- opportunities for setting up a discriminatory and restrictive criteria in the selection of contractors and projects;
- opportunities for acts violating the principles of equality and fair competition;
- other direct and indirect pro-corruption factors and opportunities;
- insufficient means for check of the market value of the offers, etc.;
- insufficient information-analytical provision for risk assessment;
- insufficient functionality and interconnection of the software systems;
BORKOR proposes measures to reduce or eliminate the factors or opportunities for corruption and / or fraud in the implementation of OP “Innovation and Competitiveness” 2014-2020. There are ten proposals for amendments to the legislation, primarily to the Prevention and Establishment of Conflicts of Interest Act; five proposals for implementation of anti-corruption measures in the Procedural Manual of the Program; nine proposals for implementing measures in the “Guidelines for Applicants under Procedures for Awarding Grants through the Operational Program “Development of the Competitiveness of the Bulgarian Economy” and respectively Operational Program “Innovation and Competitiveness” 2014-2020”. The proposals include implementation of standards and unification of procedures and approaches and a number of other measures to increase visibility and transparency.
The report with the proposals was submitted to the Council of Ministers in July 2014, when the government “Oresharski” was in office. It was not examined, respectively no measures were adopted.
III. Project Analysis of the drug policy in the Republic of Bulgaria in order to develop proposals opposing corrupt practices
BORKOR found 46 “weak points”. Some of them are:
- Lack of transparency concerning authorized pharmaceutical-therapeutic guidelines;
- The responsibility in the process of drafting pharmaceutical-therapeutic guidelines between national consultants, scientific societies and expert councils is not clearly defined in the legislation;
- The legislation regulating the activities of the National Health Insurance Fund (NHIF) makes it impossible to independently perform the functions and the implementation of policies which are needed by society;
- Ineffectiveness of measures to achieve the objective and inability to have full collection of health insurance contributions from Bulgarian citizens;
- Disproportionate distribution and ratio between the cost of medicines and medical activities;
- Lack of integrated electronic systems for effective exchange of information in the health system and for the needs of the NHIF;
- Unprofessional documentation of procedures for the award of public contracts;
- Lack of control over the implementation of procedures – from preparation of procedural documents to the work on the review and evaluation of tenders;
- Non-transparent and subjective criteria for the appointment of the Executive Director and Deputy Executive Director of the Executive Drug Agency;
- Non-transparent and subjective criteria in the selection and appointment of commissions, advisory councils and committees
- Illogical and restrictive standards for prescription drugs, creating inability for the patient to have a choice whether to be treated with generic drugs, and others;
There are 81 proposed measures for their elimination. The report was submitted to the second government “Borisov” in November 2014. Some of the proposed measures were reflected in the legislation, respectively in the amendment to the Health Insurance Act and the Medicinal Products in Human Medicine Act.
- Project Concept for the establishment of a central body for awarding public procurement in the Health sector
At the end of 2014, for the first time, the executive realized that there is an institution that can analyze corruption loopholes. Health Minister Dr. Petar Moskov approved the launch of activities to create a central authority responsible for procurement in the Health sector. The concept is based on the carried out analyzes, the summary of findings and the identified “weak points” and the proposed by TSPPKOP measures and integrated solutions to prevent the possibility of creating corrupt practices outlined in the reports titled “Decision-making model in the public procurement sector ” and “Analysis of the drug policy in the Republic of Bulgaria”.
The Concept focuses on the initial establishment of a centralized procurement of supplies of medicinal products and subsequently of medical products for hospitals. The idea is that procedures are conducted by a specially designed integrated information system – an online platform for e-commerce (electronic auction and electronic catalog).
The Council of Ministers adopted the Concept on February 11, 2015.
The measures proposed in the reports of TSPPKOP remain only on paper. They simmer in the Council of Ministers; there is no one to consider them. The Advisory Board is not convened. The government wants results from the Center, but does not assign tasks. More importantly, without the blessing of the Advisory Board, the proposed measures cannot be implemented. However, they would save serious money to the taxpayer; the economic impact of the implementation of anti-corruption measures will exceed many times the money invested in the system.
The “political will” now wants to reform, to convert, to merge, to close BORKOR. When would it ask to have the Center’s measures implemented? When is it going to decide to use the analytical tool paid with taxpayers’ money?
So, without political will, criticized by politicians and the media, recognized abroad, but not at home, BORKOR is awaiting its reform. It will happen on the basis of the well-known political principle in our country – everything old and inherited is bad. This however will not solve the systemic problem of corruption, where only complex and coordinated measures can achieve real results.
*The title and comment in italics are the authorship of Bivol.
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