ENI East Regional Conference Public Procurement Croatia Experience Building a Remedy System Matokanovic English

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
The Croatian Experience of Building a
Remedies System
Mihaela Matokanovic, SIGMA Expert
OECD Headquarters, Paris, 24-25 April 2014

2. Size and the importance of PP market…
• The economic significance of public
procurement in EU is substantial.
• According to estimations, governments spend
on average between10% and 15% of their
GDP on public procurement (according to
some even more than 20% in developing
countries).
• Someone could be displeased with
the process and the outcome…

3. Remedies system
‘’Remedies are legal actions which allow
economic operators to request the
enforcement of public procurement
regulations and their rights under those
regulations in cases where contracting
authorities, either intentionally or
unintentionally, fail to comply with the legal
framework for public procurement.’’ (SIGMA
Brief 12)

4. The Remedies Directives coordinate national
remedies systems by imposing standards
intended to ensure that rapid and effective
measures for correction are available in all
EU countries in cases where bidders
consider that contracts have been awarded
unfairly.
As soon as the alleged irregularity
occured!

5. Effective remedies system is in the interest of all
stakeholders:
• economic operators
• contracting authorities
• society as a whole.
Stable and efficient remedies system will:
-increase the lawfulness and transparency,
-build up confidence
-help opening up the PP market to foreign
economic operators.

6. Remedies systems of EU MS have to be
established according to the requirements
of the EU Public Procurement Remedies
Directives 89/665/EEC and 92/13/EEC,
amended by Directive 2007/66/EC, the
Treaty and the case law of the CJEU.

7. Main requirements for remedies system
• Rapidity
• Effectiveness
• Transparency
• Non-discrimination

8. • There are few different models of institutions
competent for remedies in EU Member States,
due to the diversity of national legal systems.
• Regular courts
• Specialised administrative bodies (in
approximately half of MS)
• A combination of the two
• It is difficult to claim that in general one model
is better than another.

9. Advantages of the establishment of specialised
procurement review bodies
• The procedure is usually simpler and
quicker than in Courts (rapidity)
• The members are dealing exclusively with
procurement cases (specialised experts)
• Lower costs

10. Basic requirements for a specialised
review body-judicial character
• The body is established by law.
• The body is permanent (not ad hoc).
• The body’s jurisdiction is compulsory (decisions
have to be enforceable)
• The procedure before the review body is
between the parties (inter partes).
• The body applies the rules of law.
• The body is independent (on institutional and
personal level).

11. Non-judicial character
• In the case where review bodies are not judicial
in character the award of public contracts may
be reviewed in the first instance by such bodies
provided that:
- there are written reasons for their decisions
- the decisions made by bodies not having a
judicial character must be subject to judicial
review or review by another body, which is a
court or tribunal and is independent (and meets
above mentioned).

12. Republic of Croatia
• The Republic of Croatia is a 28th EU Member
State. Croatia became Member State on July 1,
2013.
• ‘’Croatia's accession marks another milestone in
the construction of a united Europe. It also
provides fresh evidence of the transformative
power of the European Union: torn by conflict
only two decades ago, Croatia is now a stable
democracy, capable of taking on the obligations
of EU membership and of adhering to EU
standards.’’ (www.europa.eu)

14. • Main goals for Croatian public procurement
strategy and action plan, including remedies:
1. Development of legislative
framework
2. Development of institutional
framework and strengthening
administrative capacity
3. Prevention of corruption in the public
procurement system

15. Strategic decisions:
-have strong impact on a particular
area
-are directing the development in
certain direction.
-to be clear of desired direction and
aware of the consequences
-to take into account opinions and views
of all major stakeholders of the system
So it is
important:

16. Development Process I:
• Development of new regulations and institutions can be
organized through:
- formation of working groups (formal or informal, at the
level of central policy makers, at the level of major
stakeholders, with communication between all groups)
- regular meetings,
- systematic correspondence,
- sending the draft texts to relevant institutions etc. for
their opinions.
This is a time consuming process but this
approach guarantees quality results.

17. Development Process II:
• activities must be conducted on all levels
(national, regional, local)
• Full cooperation and coordination needed:
-institutions within the public
procurement system
- contracting authorities and
economic operators
- with other institutions: audit, internal audit and
control, prevention of corruption and conflict of
interest...

18. Remedies system…
• Very important part of the negotiation in Chapter
5.
• This was one of the first areas affected by the
EU pre-accession process.
• Negotiation process had a powerful impact on
the remedies system in Public procurement-it
changed dramatically.

19. Before EU membership negotiations…
• Remedies in public procurement were
handled within a department in Ministry of
finance.
• Separate department competent for
appeals and policy making in PP, under
the supervision of a minister.
• Most of the aforementioned basic
requirements were not met.
• Result: lack of credibility.

20. In 2003….
• a separate, autonomous body was established-
State Commission for Supervision of Public
Procurement Procedures.
• The body was established by law.
• The body was permanent (not ad hoc).
• The body’s jurisdiction was compulsory
• The procedure was inter partes.
• Rules of law.
• Independent (accountable to the Parliament).

21. Nowdays…
‘’The State Commission shall be an
autonomous and independent public body
competent for considering appeals in
connection with public procurement
procedures, concession award procedures
and procedures for selection of private
partners in public private partnership
projects.’’

22. Legal basis
• Act on State Commission contains provisions
that have been aligned with Directive
2007/66/EC of the European Parliament and of
the Council of 11 December 2007 amending
Council Directives 89/665/EEC and 92/13/EEC
with regard to improving the effectiveness of
review procedures concerning the award of
public contracts (OJ L 335, 20.12.2007).

23. State Commission in 2007/2008
• Separate, independent body
• 5 members, one president, one deputy.
• All together 21 employees.
• In 2007, State Commission received 637
appeals/complaints
• State Commission was competent for
appeals in public procurement lodged only by
the bidders and only at the end of the
procedure.

24. State Commission in 2014.
• 9 members, one president, 2 deputies (working in 3
councils)
• All together 35 employees.
• In 2011, State Commission received 1921 appeals in
Public procurement and in concessions
• In 2013, State Commission received 2098 appeals.
• State Commission is competent for appeals in Public
procurement, Public private partnerships and
Concessions. The State Commission is also competent
for submitting accusatory motions in relation to
misdemeanors set forth in PPL and other regulations in
the field of public procurement

25. COMPETENCE IN 2014.
Appeals in Public
procurement
procedures
Appeals in
concession award
procedures
Appeals in procedures for
selection of private
partner in PPP
Submission of the
accusatory motions
regarding misdemeanors
in Public procurement

26. Statistics
By the end of 2013., total number
of appeals was 2098.

27. Greatest challenges in remedies I
• Constant growth in competences
(concessions, PPP, misdemeanors)
• Constant growth in number of appeals
(lack of administrative capacity )
• Prolonging in average number of days
needed to resolve an appeal (30 in 2007
and 70 in 2011).

28. Greatest challenges in remedies II
• Appeals became more and more sophisticated
• Special expert knowledge for some subject
matters
• Ex officio
• Problems due to automatic suspension
• Administrative court (long procedures, unclear
results and action after the verdict)
• Appeals from different countries and different
legal systems…

29. Lessons learned in Croatia…
• It is better to have specialised administrative
body competent for remedies (in Croatia regular
courts are overloaded, long and complicated
procedures and there is a lack of PP experts).
• PP market was changing constantly, number of
appeals kept increasing on yearly basis. We
made a mistake with waiting too long before we
took some actions (more members, more legal
experts). You need to be flexible and adjustable-
your problems are multiplying on the PP system.

30. • Fight against corruption:
- is extremely important but Remedies body in PP
is not excellent choice to place to many
obligations in this respect (ex officio).
• Full cooperation with policy making body.
• Constant capacity strenghtening.

31. • Transparency and independency in
work (the result is credibility among
contracting authorities, economic
operators and general society).

32. Thank you!