Riigihangete hindamine: pakkuja kogemus on osa pakkumusest.

Riigihangete hindamine: pakkuja kogemus on osa pakkumusest

Esmakordselt lubab uus riigihangete direktiivi eelnõu ehitustööde ja teenuste hankimisel pakkumuse hindamisel arvesse võtta ka pakkumuse teinud turuosalise kogemust, töökorraldust ehk meeskonna tugevust ning kvalifitseeritust. Nii loodetakse anda hankijale võimalus valida endale lepingupartneriks pakkujad, kes kogemust arvestades annavad tõenäoliselt parima võimaliku tulemuse.

Kui erasektoris otsib ettevõte endale uut partnerit, siis võtab ta lõpliku otsuse langetamisel arvesse nii uue partneri tehtud sisulist pakkumust kui ka tema senist kogemust. Riigihangetel on sisulise pakkumise ja kogemuse koos vaatlemine aga raskendatud.

Pakkuja kogemust on seni peetud vaid kvalifitseerimise ehk ühe menetluse etapi küsimuseks, mis on eeltingimuseks hindamiseni jõudmisel. Seni on leitud, et pakkuja kogemust ja meeskonna tugevust ei ole võimalik pakkumuse hindamisel arvesse võtta. Selleks, et anda kõikidele sarnase kogemusega pakkujatele võrdsed võimalused lepingu saamiseks hinna või pakkumuse sisuliste omaduste kaudu. Nüüd on selles osas oodata mõningast muutust.

Kehtiv õigus: pakkuja kogemus seisab pakkumusest eraldi

Hetkel kehtiv riigihangete seadus näeb ette, et pakkuja kogemust ja pakkumuse sisu hinnatakse hankemenetluse rangelt eristatud  etappides: pakkuja kogemust mõõdetakse kvalifitseerimise käigus ning sellest sõelast edasipääsenute pakkumusi võrreldakse järgmises etapis. Neid kahte etappi omavahel segada ei ole lubatud.

Pakkumuse hindamisel ei tohi arvesse võtta ei pakkuja kogemust, karismaatilisust, partnerite head tagasisidet ega midagi muud, mis iseloomustab pakkuja isikut. Valik tuleb langetada rangelt pakkumuse (nt pakutava ehitustöö, auto, printeri või tõlketöö) sisuliste tunnuste ja/või hinna pinnalt.

Selline range pakkuja kogemuse ja pakkumuse lahutamine on tekitanud pahameelt nii hankijates kui ka pakkujates. Eeskätt häirib hangetes osalejaid see, et hindamisel ei ole võimalik näiteks pikaajalist kogemust lisapunktidega hinnata. Praeguse direktiivi ja riigihangete seaduse regulatsiooni järgi konkureerivad omavahel tooted, mitte ettevõtjad. Seega saab alati määravaks see, mida ning mis tingimustel pakutakse.

Kehtiva  süsteemi eeliseks on see, et riigihangete kaudu on võimalik lepinguid ühtsetel alustel võita nii alustaval ettevõttel kui ka vanal ja turul tuntud tegijal.

Samas on konkurentsi edendamise ning kõikidele ettevõtjatele võrdsete tingimuste loomise kõrval tähtis seegi, et hankija saaks maksumaksja raha eest osta võimalikult kvaliteetset ja hea hinnaga toodet või teenust. Tuleb tõdeda, et ausa konkurentsi edendamine võib kohati just õigustada turuosaliste varasema kogemuse arvestamist.

Hetkel kehtiva süsteemi miinuseks tuleb pidada seda, et mitte alati ei pruugi hankija saada tegelikult parimat tulemust. Eriti valdkondades, kus pakkuja isikut ja tema kogemust on sisuliselt raske või võimatu eraldada pakkumusest kui hanke esemest (nt programmeerimis-, tõlke- või koolitusteenused või kunstiteose tellimine).

Uued tuuled: pakkuja kogemus ja pakkumus kui tervik

Esmakordselt lubab uus riigihangete direktiivi eelnõu ehitustööde ja teenuste hankimisel pakkumuse hindamisel arvesse võtta ka pakkumuse teinud turuosalise kogemust, töökorraldust ehk meeskonna tugevust ning kvalifitseeritust. Nii loodetakse anda hankijale võimalus valida endale lepingupartneriks pakkujad, kes kogemust arvestades annavad tõenäoliselt parima võimaliku tulemuse.

Näide ehitusvaldkonnast: mõistetavalt ei ole maja ehitamise maksumus ainus, mida hankija (avaliku) raha eest tasutakse. Maksumuse hulka kuulub ka ehitise hilisem ülalpidamiskulu, mis sõltub juba suuresti ehitustööde kvaliteedist. Ehitustööde kvaliteet sõltub omakorda aga pakkuja kogemusest. Seega, mida kogenum pakkuja, seda kvaliteetsem peaks reeglina olema ka pakutav töö või teenus.

Kokkuvõttes peaks pakkuja kogemuse arvestamise võimalus hindamisel teenima nii ausa konkurentsi soodustamise kui rahaliste vahendite säästliku ja otstarbeka kasutamise eesmärki.

Pakkuja kogemuse hindamiskriteeriumina arvestamise võimalus ei laiene siiski asjade ostmisele. Asjade hankelepingu sõlmimisel peab hankija jätkuvalt  pakkumusi hindama kas hinnast või majanduslikust soodsusest lähtuvalt. Ilmselt on selline lähenemine ka õigustatud, arvestades, et valmistoote ostmisel ei mõjuta tootja või edasimüüja varasem kogemus reeglina niivõrd suurel määral hanke tulemust kui teenuse või töö tellimise jätkuvas protsessis.

Kadri Teder

Advokaadibüroo LAWIN jurist

=> raamatupidaja.ee – Riigihangete hindamine: pakkuja kogemus on osa.

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