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PPT, D Koba 2, Third ENP East public procurement conference, Tbilisi, 6 November 2019

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PPT, D Koba 2, Third ENP East public procurement conference, Tbilisi, 6 November 2019

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PPT, D Koba 2, Third ENP East public procurement conference, Tbilisi, 6 November 2019

  1. 1. © OECD 3rd regional ENP East conference on public procurement Polish review system Dariusz Koba, KCG, Poland Tbilisi, 6-7 November 2019
  2. 2. Two review systems Polish procurement system was established in 1994. The Public Procurement Act (PPA-I) introduced review system: 1) protest do procuring entity 2) appeal reviewed by the panel of arbiters 3) compliant to a court In 2004 the new Law on Public Procurement (PPA-II) was accepted and (after many amandements) review system changed a lot: 1) appeal reviewed by the National Appeals Chamber 2) compliant to the court (one court from 2021 – PPA-III) 1
  3. 3. Legal interest The PPA-I granted contractors the right of review of their complaints when their legal interests have been infringed upon through a violation by the procuring entity of the principles described in the Act. Why „legal interest”, not economic? - we don’t have it now: Legal protection measures are granted to contractors, if they have or had interest in being awarded the contract and suffered or may suffer a damage as a result of the violation of the provisions of this Act by the contracting authority. (PPA-II) 2
  4. 4. „being awarded the contract” The PPA-II granted legal protection measures to contractors if they have or had interest in being awarded the contract and suffered or may suffer a damage … Does „being awarded the contract” mean „during the procedure”? Especially when the Directive 92/13 (as amended by Directive 2007/66) contains the concept of ‘a particular contract’. • What if the contractor tends to cancellation of the procedure? Polish National Appeal Chamber asked the Court of Justice of the European Union the question which was answered that the concept of ‘a particular contract’ may, where appropriate, apply to the possible initiation of a new public procurement procedure. (C-131/16 Archus) 3
  5. 5. Protest The PPA-I stated the procedure starts when the contractor submits a written protest to the procuring entity. A protest must contain reasons for the complaint being submitted and must be filed within 7 days from the day the contractor/supplier learned or could have learned of the circumstances giving grounds for the complaint. Many compliants were resolved at this stage – procuring entity accepted all or part of pleas and changed its decision but in 2009 protests were cancelled… 4
  6. 6. No protests Why had we resigned with protests? To speed up procedures:  7 days for submission of protest + 5 days to resolve it  Poland and Ukraine was choosen for UEFA EURO 2012 Was it clever? There were no statistics about protests (3-5 times more then appeals) Number of appeals:  in late 90s – about 1500 yearly  after changes – about 3000 yearly 5
  7. 7. Protests vs. no protests Are protests usefull? 6 protest no protest cost none registraction fee (3500 EUR – suppy & services and 5000 EUR – works) lawers not needed necessary relations cooperation conflict time 12 days --------------------
  8. 8. Appeals  According to PPA-II the contractor submits an appeal to the President of the National Appeal Chamber (NAC).  The appellant should dispatch a copy of the appeal to the procuring entity.  The procuring entity shall forthwith dispatch a copy of appeal to all other economic operators who participate in the contract award procedure (and place it also on the website – if appriopriate) calling upon the economic operators to access the appeal procedure.  Procuring entity can answer the appeal. 7
  9. 9. Arbitration The PPA-I set the arbitration procedure for examination of appeals:  there were a list of more than 650 arbiters, representing many professions  they had different jobs and ocasionally were appointed to the panel  the contractor selected one arbiter, the procuring entity selected another, and the Chairman of the PPO selected the third; the Chairman also appointed the chairman of the arbiters panel – usually lawers  Arbiters were supposed to be neutral and not to represent the interests of the party that nominated them 8
  10. 10. Appeal Chamber The PPA-II introduced the National Appeal Chamber:  there is a list about 50 members of the Chamber, lawers only  it is their full-time job  the Chairman of the Chamber desides if the case will be examined by one or three-member panel and appoints the members (by alphabet) 9
  11. 11. Examination of appeals Why had we changed arbitration into the Chamber?  to professionalize the examination  demanding recruitment process  members of the Chamber are independent  members of the panel can spend more time on case  less procedural and formal mistakes but lawers are specialists in procedural requirements, not efficiency arbitrators take into account justness, not only detailed provisions of the law 10
  12. 12. Examination of appeals Why had we changed arbitration into the Chamber?  to unify judgements  less members of the Chamber  full-time employment  possibility to develope ways to treat particular situations but it doesn’t work 11
  13. 13. Examination of appeals What to choose? 12 arbitration the Chamber professionalization as to the merits as to the law unification difficult? easier? cost no difference time no difference
  14. 14. Express judgements Probably the most important factor is the speed of review procedure. The procuring entity may not conclude a contract until the Chamber passes its judgment or decision which ends the appeal procedure.  Time limit to appeal: 5 – 10 – 15 depending on value and way of communication (according the Directive 2007/66)  The Chamber examines the appeal within 15 days from the date of its submission.  Hearing lasts usually one day and usually the rulling is announced the same day (or the following day).  Justification of the rulling is prepared within several days. 13
  15. 15. Complain to the court  The parties and participants of the appeal procedure may complain to the court against the Chamber’s ruling.  The complaint should be lodged through the President of the Chamber within 7 days of the day, on which the Chamber’s ruling was submitted, dispatching simultaneously its copy to the complaint’s opponent.  The court shall forthwith examine the complaint, however not later than within 1 month of the day, on which the complaint was received by the court.  The court’s judgement or decision that ends the procedure in the case shall not be a subject of revocation complaint. 14
  16. 16. Thank You. I wish You better procurements. In another way. Dariusz Koba 15

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