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PPT, T Pusnar Third ENP East public procurement conference, Tbilisi, 6 November 2019

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PPT, T Pusnar Third ENP East public procurement conference, Tbilisi, 6 November 2019

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PPT, T Pusnar Third ENP East public procurement conference, Tbilisi, 6 November 2019

  1. 1. Twinning project „Strengthening Public Procurement Practices in Georgia“ EU Twinning Project in Georgia: Establishment of the procurement review system in Georgia: key dilemmas and challenges Tadeja Pušnar, member of the National Review Commission, Slovenia Tbilisi, 5-7 November 2019 1
  2. 2. Twinning project „Strengthening Public Procurement Practices in Georgia“ Data Period of implementation: January 2019 – January 2021 Implemented by: BBG, Austria (Leading Partner) National Review Commission, Slovenia (Junior Partner) Beneficiary: State Procurement Agency, Georgia 2
  3. 3. Twinning project „Strengthening Public Procurement Practices in Georgia“ Overal objective Support the development of the Georgian PP system in line with EU and international best standards. 3 TRANSPARENCY NON-DISCRIMINATION COMPETITIVE PP SYSTEM
  4. 4. Twinning project „Strengthening Public Procurement Practices in Georgia“ The mail results Legislation Institutional and administrative capacities Remedy system 4
  5. 5. Directive 2007/66/EC (amending Directives 89/665/EEC and 92/13/EEC): • MS must ensure that „decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible“, • legal protection may be provided by: a) judicial bodies, b) bodies which are not judicial in character:  written reasons for decisions of such a body must always be given,  decisions of such a body must be subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the Treaty and independent of both the contracting authority and the review body. EU legal framework on remedies 5
  6. 6. Judicial bodies: - Which bodies are to be considered „judicial” is a question of the EU and not of the national law; - Includes both „classical” courts and „tribunals” (Article 267 TFEU). Criteria for “judicial character” of review bodies under the Directive: • independence, • members of the body are appointed and dismissed from office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal, • at least the President of this independent body have the same legal and professional qualifications as members of the judiciary; • The independent body takes its decisions following a procedure in which both sides are heard, • decisions of such body are, by means determined by each Member State, legally binding. 6
  7. 7. Principles on legal protection LEGAL PROTECTION RAPIDNESS NON_DISCRIMINATION AVAILABILITY EFFECTIVNESS 7
  8. 8. Organisation of review system JUDICIAL (REGULAR COURST): Sweden, Italy, France, Austria,.. NON-JUDICIAL = SPECIFIC BODIES: Germany, Denmark, Slovenia,.. 8
  9. 9. Slovenian review system • First formalized at state level in 1993 – decision to set up a non- judicial body • In 1999 – establishment of the National Review Commission for Reviewing PP Award Procedures as independent and impartial review body 9
  10. 10. PUBLIC PROCUREMENT IN SLOVENIA IN NUMBERS • Slovene GDP in 2018: 43 billion EUR • PP Contracts Value in 2018: 4,76 billion EUR = 11 % of GDP • Number of contracting authorities: app. 3000 • Number of high-value PP procedures in 2018: 6.400 10
  11. 11.  a specialized, independent, professional, expert state institution  legal protection at all procedural levels of the award of public contracts  not acting as a formal court, but it fulfils all the requirements for a tribunal according to the Court of Justice of European Union 53 ,233bz hz 1h+šhš hhšhšš štšš - established by Law - permanent, independent - applies rules of Law - its jurisdiction is compulsory - inter-partes procedures (ECJ case C-296/15 - Medisanus) STATUS OF THE NATIONAL REVIEW COMMISSION 11
  12. 12. MEMBERS OF THE NRC - appointed by the National Assembly on the proposal of its committee, responsible for terms of office and elections, - eight year period of office, - status of state officials, - general conditions for judges apply (age, personal competence…); - president and two members shall be educated in the field of law, while two other members shall be educated in other fields; the president must fulfil the additional requirement of passing the state judicial exam (bar exam); - president and members shall have at least six years of experience in the field of public procurement. 12
  13. 13. REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURES Two - stage procedure: 1. Before the Contracting Authority (pre-review procedure) 2. Before the National Review Commission (review procedure) + lawsuit for annulment of contract (regular civil court) + lawsuit for damages (regular civil court) 13
  14. 14. 1. Before the Contracting Authority a) capacity to initiate proceedings: • interest + damages AND representatives of public interest b) admissibility of legal protection: • a review claim may be lodged during all stages of the procedure and against each action of the contracting authority c) contents of a review claim (among other): • proof of paying the procedural fee (500-25.000 EUR) d) time limits for submitting a review claim: • 10 wd (tender documentation) / 8 wd (decision) e) consequences of the submitted review claim • partial ex lege suspension effect (concluding of the contract) f) contracting authority‘s decision • rejection of the review claim, adoption and partial/complete annulment14
  15. 15. 2. Before the National Review Commission  no direct approach, the NRC cannot commence a review procedure on its own,  when the contracting authority rejects the review claim it has to deliver the entire documentation to the NRC (3 WD); the review procedure starts automatically upon receiving of the documentation,  cases decided by a three members senate/panel,  natural judge principle – members of the panel appointed for each individual case,  advisors appointed to each case – rotation system,  establishing facts;  adversarial principle – a duty to state infringements and facts and evidence proving them;  NRC may request additional documents from parties and other persons of public and private law,  may engage experts (court-sworn and other),  may hold oral hearings (not obligatory). 15
  16. 16. NATIONAL REVIEW COMMISSIONS‘ DECISION  Within the limits of the review claims  subsidiary use of the civil procedures act,  competence of an appelate body / but can advise  15 working days (+ 15 working days) = instructive time limits  transparency of work – all decisions published on the webpages of the NRC  no legal remedies (claim for damages) Request is rejected as unsubstantitated/inadmissible Request is sustained, procedure invalidated 16
  17. 17. Statistical data • 300 - 400 review procedures per year (5 % of all PPP), • 1/4 of review claims filed against call for tender (tender documentation), 3/4 filed against decision on awarding of the contract; • 30-40 % of review claims are sustained. 17
  18. 18. Enhancement of Georgian review system 1. The revision of the review system; 2. The independence and impartiality of the new review body; 3. Training of representatives of stakeholders; 4. The competence and timeliness of the work of the new review body. Several activities implemented: - Drafting of review system analysis and recommendations - ongoing - Training of representatives of stakeholders - ongoing - Study visit - implemented - Public awareness campaign (kick-off, conference) – ongoing. 18
  19. 19. Public Procurement in Georgia - NOW Regulated in Public Procurement Law. 19 Remedies Dispute Resolution Board Representatives of SPA Representatives of the NG sector Judicial system
  20. 20. The EU-Georgia Association Agreement … in Chapter 8 on public procurement defines the expected enhancements of the Georgian SPA institutional, human ad technical capacities over the years 2014-2022 in order to facilitate the approximation of the Georgian PP legislation with the EU aquis. It provides for a clear timeline for the gradual approximation progress, as for the remedies system it is predicted (among others) that Georgia will undergo „Phase 4 – 7 years after the entry into force of the AA – other elements of the Public Sector Directive and the Public Sector Remedies Directive“. 20
  21. 21. Regarding remedies Georgia has committed itself to.. - set up un impartial and independent (separate from CA and economic operators) review body (non-judicial, specialised), - to provide for judicial control against its decisions, - to provide for the decisions concerning infringements of domestic law to be effectively enforced, - to ensure effectve judicial protection agains decisions of the CA related to the award of the contract, - to make such decisions public. Draft amendments to the PPL analised recommendations provided. 21
  22. 22. Public Procurement in Georgia – DRAFT MODEL 22 Competition Ageny The Office (civil servants, HRM, IT,…) REMEDIES Court . Appeal 5 members 5 years appointed by PM THE REASONS FOR THIS DRAFT MODEL? similar to judges (salary, requirements for appointment, ..) Dispute Resolution Council
  23. 23. Challenges for the future 1. Legislation: To fulfill the requirements from the AA and at the same time protect the legitimate interests of the Georgian government regarding the remedies system; 2. Capacity building: To set up a new review body and to properly train its members and members of the judiciary to perform their roles in line with national legislation and EU aquis (directives and ECJ judgements); 3. Visibility and image of the new review body: To make concrete steps to build a good image of the new review body, good visibility of the institution and good contact with bidders, contracting authorities, media and other relevant stakeholders. 23
  24. 24. Thank you for Your attention. tadeja.pusnar@dkom.si 24

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