Presentation on Importance of independent review system
Upcoming SlideShare
Loading in...5
×
 

Presentation on Importance of independent review system

on

  • 55 views

Presentation for SIGMA public procurement workshop in Moldova 9 June 2014 by Zoran Blazevic

Presentation for SIGMA public procurement workshop in Moldova 9 June 2014 by Zoran Blazevic

Statistics

Views

Total Views
55
Views on SlideShare
55
Embed Views
0

Actions

Likes
0
Downloads
0
Comments
0

0 Embeds 0

No embeds

Accessibility

Upload Details

Uploaded via as Adobe PDF

Usage Rights

© All Rights Reserved

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment

Presentation on Importance of independent review system Presentation on Importance of independent review system Presentation Transcript

  • © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Importance of the independent review system and key benefits - EU legislation and international good practice - Zoran Blažević, Croatia Chisinau, Moldova, 9 June 2014
  • Content Procurement review and remedies system Principles First steps PRB – Procurement Review Body Recommendations 2
  • 3 Creating an adequate „Procurement Environment” Law Clearly drafted Principle-based Reliable framework Remedies Accessible Effectiveness Cost Institutions Review body Oversight body Central purchasing agency Key questions Procurement system Training Procurement personnel Public Procurement Environment
  • Public procurement market • PRIVATE ENTITIES – Survival in business? YES – Where happening? MARKET • PUBLIC ENTITIES – Do they have to buy? YES – Where? MARKET ROLE OF PRB? • Public procurement market in Republic of Croatia in 2012.: 33.250.330.011,00 HRK. In BDP 11.9%. • Value of appeal cases in front of PRB in 2012.: 11.555.556.000,00 HRK. 4
  • What are the rights of the parties in the remedies procedure • A dissatisfied party may appeal to the PRB’s and to seek protection of rights before the PRB’s against: - Decisions - Acts - Omission 5
  • The most common complaint alleges • Description of procurement – technical specification. • Conditions and evidence of suitability. • Selection criteria. • The central institutes of public procurement conditio sine qua non. 6
  • Why is the independence the key issue? • Dispute between contracting authorities and representatives of private sector. • To whom the unsatisfied party may appeal? • Executive government vs private sector… • How to create trust from the side of private sector and avoid distrust. • Court system or independent review bodies. 7
  • To whom appeal can be submitted? • To the Courts ? • To the independent procurement review bodies (PRBs)?
  • Directive 89/665 What if PRB is not part of judicial government Decisions of the PRB-s in the process of control of the public procurement, have to be in writing, with an clear explanation of reasons for such decision-making. For all participants in the review proceedings, after the decisions of PRBs, judicial review in the last instance have to be secured. PRB has to be independent and the members of PRB will be elected on mandate. PRB procedure is inter partes and decision of such body have to be legally binding. Members of the PRB shall be appointed under the same conditions as the representatives of the judiciary. President of PRB must meet the same legal and professional qualifications as members of the judiciary.
  • REPUBLIC OF CROATIA PRB IN PUBLIC PROCUREMENT SYSTEM CROATIAN PARLIAMENT GOVERMENT OF THE REPUBLIC OF CROATIA VICE – PRESIDENT OF GOVERMENT AND MINISTER of the MINISTRY OF ECONOMY, LABOUR AND ENTREPRENEURSHIP - Negotiator for Chapter 5 -th - Public Procurement MINISTRY OF ECONOMY, LABOUR AND ENTREPRENEURSHIP Directorate for the PP System REPORT STATE COMMISSION FOR THE SUPERVISION OF PP PROCEDURES PARTICIPANTS IN THE PUBLIC PROCUREMENT/ APPEALS MINISTRY OF FINANCE AGENCY FOR THE PPP COORDINATING BODY for the IMPLEMENTATION of PP SYSTEM INFORMAL OPERATIONAL WORKING GROUP
  • Remedies available to economic operators • Pre-trial complaints before the contracting authority (if available under national law); • Interim measures against procurement decisions, including the award decision; • Set aside of unlawful procurement decisions, award decision and • Annulment of concluded contract. • Compensation of economic operators for all harm suffered as a result of a breach of procurement law - damages
  • Benefits of independent review bodies • Stimulation of competition on the market, • Promotion of government of public finance, • Decreased possibility for corruption, • Minimizing of administrative duties, • More participants on the side of private sector, • Lower prices at the public procurements, • Stimulation of excellence, • Creation of case database • etc.
  • Review procedure - best practice model- • Standstill period • Suspension effect of the appeal • Review of public procurement award procedure should be a two-stage procedure: 1st stage: procedure before the contracting entity 2nd stage: procedure before the Court or the PRB • Legal protection against the PRB’s decision
  • 2nd stage – procedure in front of PRB or the Court: Proceedings before the PRB or the Court should only be initiated: • after an unsuccessful 1st stage review before the contracting entity. • when the aggrieved party does not consent (partially or entirely) to the decision of the contracting authority on the demands from the appeal. • if it does not decide in due specific time (for example 10 days).
  • The PRB should decide within the limits of the review appeal (and with or with out ex offo legality test of the procurement procedure). In case of violation of the basic principles of public procurement the PRB should be competent to examine all evidence considered relevant for the clarification of the subject matter of the claim and those necessary for adoption of a legally correct decision. Competence of the PRB
  • Before bringing the final decision, the PRB should: • ask for additional explanations from the contracting entity or the claimant of the review claim. • review other documents and the actual situation of both parties. • collect other information necessary for making a decision. • ask public and private law persons for personal and other data which are required for making a decision. Competence of the PRB
  • PRB should decide on the appeal authoritatively. There are three types of main decisions it can adopt: • appeal can be dismissed as unlawful or late or.. • appeal can be rejected as ungrounded. • appeal can be accepted and the decision or the • procedure in question partially or entirely invalidated. Competence of the PRB
  • Major risks in development of PRB-s Independent PRB Lack of experience in public procurement Lack of financial independence Lack of transparency in the process of selection of the members of PRB Influence of the political structure Increased administration in the procedure And possible delays in procurement procedure
  • Answers to the risks… Education of the private and public sector about legal protection in public procurement PRB – main questions? - Independents of PRB - Sufficient budget - Case law PRB - Visibility Transparent functioning Web – page Awareness raising material Manuals for all stake holders PRB - Independents • Relationship toward the government • Relationship toward the representatives of private sector • Relationship toward the contracting authorities
  • Instead of conclusion • Transparent and efficient review system is precondition for development of public procurement system. • To accomplish best value for the public money case law in remedies procedure is necessary. • Private sector is second party in the public procurement contract with equal rights as public side. • Role of the Courts is to ensure protection of the legal rights of all parties in the public procurement system. Judicial control over the PRB’s case law. 20
  • Time for…. Questions and comments ???
  • Thank you for your attention ! 22