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Presentation by Silviu-Cristian Popa, Romania (ENG) Second SIGMA Regional ENP East Conference on Public Procurement, Kyiv 29-30 May 2018


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Presentation by Silviu-Cristian Popa, Romania (ENG) Second SIGMA Regional ENP East Conference on Public Procurement, Kyiv 29-30 May 2018

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Presentation by Silviu-Cristian Popa, Romania (ENG) Second SIGMA Regional ENP East Conference on Public Procurement, Kyiv 29-30 May 2018

  1. 1. © OECD Second SIGMA Regional ENP EAST Conference on public procurement Requirements for an efficient and independent review system Silviu – Cristian POPA, National Council for Solving Complaints - Romania Kyiv, Ukraine, 29 – 30 May 2018
  2. 2. © OECD ROMANIA’s contribution to the EU Digital Single Market The remedies directives perspective THE NATIONAL COUNCIL FOR SOLVING COMPLAINTS (N.C.S.C.) 2006 – 2018 12 years of public procurement solving complaints
  3. 3. © OECD EU directives on public procurement scope To stimulate the economy and unlock investment by four main strands: Definition of priority areas for improvement; Voluntary ex-ante assessment of large infrastructure projects; Recommendation on professionalization of public buyers; Consultation on stimulating innovation through public procurement.
  4. 4. © OECD Review procedures – general EU requirements • available at least to any person having or having had an interest in obtaining a particular contract; • who has been or risks being harmed; • ensure that effective and rapid remedies are available; • contracts which fall within the personal and material scope of the Directives.
  5. 5. AT: Austria BE: Belgium BG: Bulgaria CY: Cyprus CZ: Czech Republic DE: Germany DK: Denmark EE: Estonia EL: Greece ES: Spain FI: Finland FR: France HR: Croatia HU: Hungary IE: Ireland IT: Italy LT: Lithuania LU: Luxembourg LV: Latvia MT: Malta NL: Netherlands PL: Poland PT: Portugal RO: Romania SE: Sweden SI: Slovenia SK: Slovakia UK: United Kingdom
  6. 6. © OECD Current Romanian legal framework • National Public Procurement Strategy; • Law 98/2016 on public procurement – general guidelines on award; • Law 99/2016 on procurement in water, energy, transport and postal services; • Law 100/2016 on concessions; • Law 101/2016 on remedies, National Council for Solving Complaints; • details in secondary legislation level.
  7. 7. © OECD RO institutional framework I National Agency for Public Procurement: • regulating (legislative) function; • advisory and operational support; • ex-ante (tender documentation, evaluation process); • ex-post verifications; • monitoring; • international representation.
  8. 8. © OECD RO institutional framework II National Council for Solving Complaints: • non-judiciary institutional body; • administrative body; • first instance; • fast track service of solving complaints; • complaints against public procurement procedures;
  9. 9. © OECD N.C.S.C. FLOW CHART
  10. 10. © OECD RO institutional framework III Romanian Agency for Digital Agenda: • under Ministry for Communication; • operator of the Electronic System for Public Procurement (ESPP); Administrative branch of justice: • county level courts; • contentious-administrative sections; • ex-ante/post phase; Romanian Court of Accounts; Competition Council.
  11. 11. © OECD First instance review National Council for Solving Complaints (N.C.S.C.) • purpose: guarantee compliance with procurement legislation; • roles: remediation; cancel illegal procedures; • independence: not subordinated; • competence: annul documents, annul awards, require measures.
  12. 12. © OECD Second instance review • Claims against NCSC decisions to be submitted to the Court of Appeals (contentious-administrative sections); • Designated court of appeal - correlated with contracting authority location; • Court of appeal decisions: final, conclusive, binding for all.
  13. 13. © OECD N.C.S.C. solving complaints approach • functioning, organization regulated; • coherent application of legislation; • expressly regulated principles: legality, expediency, contradictory procedure, right to defense; • 11 specialized, three member panels; • members: special status civil servants, assigned by P.M. after winning public contest.
  14. 14. © OECD N.C.S.C. solving complaints approach N.C.S.C. members’ professional profile: • > nine years’ professional experience • legal, technical, economic field • > two years’ procurement experience N.C.S.C. president: • law degree • chosen among members by secret, absolute majority vote • three years’ mandate.
  15. 15. © OECD Some N.C.S.C. statistics Aggregate complaints data: (over 11 years) - total no. of complaints: > 61,000 - total no. of decisions: > 58,000 Courts of Appeals reversal rate: 1.85% NCSC’s “success rate” over 98%
  16. 16. © OECD
  17. 17. © OECD Compliance with the remedies law Complaints submitted to the NCSC are free of charge;  Prior notification - Admissibility conditions for complaints; Suspensive effect – decision to suspend the awarding procedure;  N.C.S.C. procedure – written based.
  18. 18. © OECD Elements of a complaint •Relevant information (name of complainant, name of the contracting authority, contact information); • The object of a complaint; •Burden of proof - the plaintiff presents all the facts necessary for the judgment.
  19. 19. © OECD Timelines submitting a complaint JOUE threshold related: 10 days – above the threshold; 5 days – below the threshold; Not submitted within the time limits complaint is overdue.
  20. 20. © OECD Timelines solving a complaint General rule – within 20 working days after tender file submission; Common law legal exemption – 10 working days; Claims against the N.C.S.C.’ s decisions to be solved by Court of Appeals – 45 days.
  21. 21. © OECD Subject matter jurisdiction  Over the subject matter described in the complaint only;  No ex - officio legal competencies;  Direct awards - decline jurisdiction to the tribunal county.
  22. 22. © OECD Redress current specific topics European Single Procurement Document (ESPD);  Prior notification;  The unjustified refusal to award the public procurement contract in separate batches.
  23. 23. © OECD
  24. 24. © OECD Redress current specific topics Abnormally Low Tender Prices;  Relying on third - party;  Conflict of interests in public procurement.
  25. 25. © OECD
  26. 26. © OECD The measures on the unification of administrative and jurisdictional practice •Inside N.C.S.C. – monthly plenum review regarding different rulings on similar cases (by law); • Building case law - semestrial common meetings with judges and other key institutions representatives (by law).
  27. 27. © OECD N.C.S.C. portal To ensure a user-friendly access to N.C.S.C. case-law a portal been developed;  Best practices guide is available on electronic format.
  28. 28. © OECD Food for thought More stringent rules against illegal direct awards of public contracts – national courts are able to render these contracts ineffective if they have been illegally awarded without transparency and prior competitive tendering unless that is specifically permitted under the directives. Source: OECD (2016), “Corruption in Public Procurement”.
  29. 29. © OECD EU pilot supports for large infrastructure projects 1. Helpdesk; 2. A voluntary notification mechanism; 3. An information exchange mechanism.
  30. 30. © OECD EU review system General assessment 1.Improve compliance with the rules; 2.More effective competition for public contracts; 3.Costs outweighing the benefits of more competition.
  31. 31. © OECD Lessons to be learned Think outside the box;  Design solutions within the EU’s public procurement and remedies directives legal framework. Cпасибі