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PPT, G Cazan, SIGMA, Third ENP East public procurement conference, Tbilisi, 6 November 2019


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PPT, G Cazan, SIGMA, Third ENP East public procurement conference, Tbilisi, 6 November 2019

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PPT, G Cazan, SIGMA, Third ENP East public procurement conference, Tbilisi, 6 November 2019

  1. 1. © OECD 3rd Regional Public Procurement Conference For ENP EAST Countries The independence of the review bodies and the requirement of impartiality in decision-making Gheorghe Cazan, SIGMA OECD 5-8 November 2019 Radisson Blu Iveria, Tbilisi, Georgia
  2. 2. Review and remedies system • An effective, rapid, transparent and non-discriminatory remedies and review system is one of the key features defining a sound and efficient public procurement system • Main objective: - to enforce the practical application of public procurement legislation by ensuring that violations of legislation and mistakes of the contracting authorities/entities can be corrected • A crucial mechanism for protecting the legality and integrity of the procurement process • Basic principles and procedures in the field of review and remedies systems must be based on the specific requirements of the EU Remedies Directives 89/665/EEC and 92/13/EEC (as amended by Directives 2007/66/EC and 2014/23/EU) 1
  3. 3. Review bodies • Different models for the establishment of a remedies institutional framework and different approaches for enforcement in EU Member States (due to the diversity of national legal traditions) • Regular courts or specialised/administrative bodies? (in particular as a first instance) • Many member states - more than a half - set up specialised/administrative bodies with the authority to provide remedies o Main advantages: rapidity, specialisation o Main risk: insufficient independence 2
  4. 4. Judicial Character of a Review Body Conditions: 1. The body is established by law The legal provisions regulate all the aspects ensuring the functionality of the body: - review body’s competences - appointment and dismissal of its members - qualifications required of the review body’s members - conflict of interests - predetermined system for the distribution of cases - procedural requirements 3
  5. 5. Judicial Character of a Review Body 2. The body is permanent The body is not established on an ad hoc basis. Its members remain in their position for a determined number of years This requirement does not exclude the possibility of having several panels within the review body dealing with cases according to a predetermined distribution system. 3. The body’s jurisdiction is compulsory Decisions of the review body has to be enforceable - Impose interim measures, including measures to suspend or ensure the suspension of the tender procedure or the implementation of any decision taken by the contracting authority; - Set aside or ensure the setting aside of any decision taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the tender notice or in tender documentation. 4
  6. 6. Judicial Character of a Review Body 4. The procedure before the review body is between the parties (inter partes) - All interested parties are given an adequate opportunity to present the facts and evidence, and each party should have the right to respond or to challenge all evidence and arguments presented by the other party - Oral hearings (an acceptable alternative is to allow the parties to submit written statements during the review procedure) - Both parties must have access to the review proceedings file, with the exception of confidential information 5. The body applies the rules of law 6. The body is independent The main principle is that the review body carries out its task independently and under its own responsibility, and that its members are subject only to observance of the law 5
  7. 7. WTO Agreement “Challenges shall be heard by a court or by an impartial and independent review body with no interest in the outcome of the procurement and the members of which are secure from external influence during the term of appointment. “ 6
  8. 8. Independence of the review body • Independent from the parties of procurement procedures – contracting authorities/entities and economic operators • Functionally independent of the Government  PPA has specific tasks of a review body – not acceptable  Review body under the supervision of a Ministry - independence cannot be guaranteed  Review body under the supervision of Parliament - best solution 7
  9. 9. Independence of the review body • Financially independent – with its own budget Budget - sufficient - secured by the legal framework - not subject to administrative decisions • Independence of the Members of the review body 8
  10. 10. Independence of the Members of the Review Body • Procedures of appointment and dismissal • Who appoints/dismisses the Members ? - President of the country - Parliament - Prime-Minister - unsafe Appointment of the members of the review body is preceded by a procedure to verify the required skills and experience of the candidates • When does exist the possibility of dismissal, prior to the expiration of the mandate ? - limited by the Law (PPL) to objectively justifiable cases 9
  11. 11. Independence of the Members • Interference that might be exerted by the executive and/or political level - special provisions in the Law (PPL) • Conflict of interests - rules on the identification of conflict of interests - rules on the disclosure of conflict of interests - no participation in decision making process • Financial safety 10
  12. 12. Independence of the Members • Usually, review body Members are forbidden to: - Perform commercial activities, including consultancy activities, directly or through intermediaries - Exercise any public or private function, except for activities in teaching, scientific research and/or literary and artistic creation - Hold the quality of member of a political party and perform or participate in political activities 11
  13. 13. Independence of the Members • Perception of the parties is important - lack of knowledge in technical aspects/specifications of the tender documents – use external expertise  Abnormal low tenders  Discriminatory specifications - delayed decisions - inconsistency of the decisions - lack of transparency in the process of selection of the members 12
  14. 14. Independence of the review body • External experts • Case Registry, data base of decisions, search engine • Visibility of the review body - Oral hearings (where needed) - Transparent functioning - Web – page - Awareness raising material 13
  15. 15. Conclusions • The institutional set-up of the complaints review mechanism should guarantee the impartiality and independence of complaint resolution • The legislative framework provides for the right for the participants in procurement procedures to challenge decisions or actions taken by a contracting entity and define the decisions and actions that are subject to review • The legislative framework specifies the available remedies in compliance with good international practices, including interim measures, setting aside the decisions of the contracting entities, damages, mechanisms for ineffectiveness of the contract and the imposition of penalties 14
  16. 16. Conclusions • The review and remedies system is easily available to economic operators, without discrimination and excessive cost. • The review and remedies system provides speedy, effective and competent handling and resolution of complaints and sanctions, including comprehensive publication of judgements and their rationale. • Due consideration should be given to achieving the main goals of public procurement (particularly value for money through open, transparent and non-discriminatory competition), as opposed to focusing on purely formal errors and omissions, especially those that do not impact on the outcome of the procurement. 15
  17. 17. Thank you for your attention