Presentation by Borut Smrdel from Slovenia, at the regional conference organised by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016.

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Regional Conference
for Public Procurement Review Bodies
in EU Enlargement Countries
Transparency of the procurement remedies
system in Republic of Slovenia
Borut Smrdel, President
National Review Commission for Reviewing
Public Procurement Procedures
Republic of Slovenia
9 – 10 June 2016, Ohrid

2. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE
Two - stage procedure:
1. Before the Contracting Authority,
2. Before the National Review Commission  no direct
approach; National Review Commission cannot commence
a review procedure on its own (ex officio); submission of a
review claim does not have an ex-lege suspension effect
(except on conclusion of the contract)
Proceedings before the NRC can be initiated only when a
contracting authority:
- rejects the request for review,
- grants the request for review and partially annuls the
procurement process,
- does not decide in due time (8 wd) and receives a proposal
for initiating a review procedure. 2

3. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
STATUS OF THE NRCRPPP
 a specialised, independent, professional, expert state
institution;
 providing legal protection at all procedural levels of the
award of public contracts;
 the NRC does not act as a formal court, but it fulfils all of
the requirements for a tribunal, set forth in jurisprudence
of the ECJ (cases Dorsch, Salzmann…):
- established by Law,
- permanent, independent,
- applies rules of Law,
- its jurisdiction is compulsory,
- inter-partes procedures.
 decisions of the NRC are final - no legal remedies
available, except for claim for damages.
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4. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU STATUS OF THE NRCRPPP
 a very efficient system – decisions in average in 12-14 WD;
 ‘The 2015 EU Justice Scoreboard’:
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5. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
TRANSPARENCY OF WORK OF THE NRC
• a list of all cases, currently handled before the NRC, is
available on the NRC‘s web pages. The list contains the
case number, date of its receipt, name of the contracting
authority, name of the appellant and the subject matter of
the award procedure;
• all decisions of the NRC on review claims and appeals are,
after receiving evidence showing that all parties have been
served the decision, published on the NRC‘s web pages;
decisions are published in full text, unless certain parts of
the decision contain personal data or data bound to be
safeguarded as confidential.
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6. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
ANALYSING DATA ON FUNCTIONING
OF THE REMEDIES SYSTEM
• the NRC reports on its work once a year to the National
Assembly of the Republic of Slovenia;
• In its report, the NRC provides statistical data on all
remedies procedures, handled before the Commission in
the reporting period (type of PP procedure, phase of
procedure, contract value, type of decision of the NRC…);
• the report also consists of presentation of most commonly
observed infringements in public procurement procedures
and other data and findings, important for the legislative
regulation of the field of public procurement;
• all annual reports of the NRC are published on the NRC‘s
web pages.
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7. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
PROTECTING CONFIDENTIAL INFORMATION
OF THE ECONOMIC OPERATORS
ALPPPP (Art. 14)
After the decision regarding a review request, appeal or request
for establishing nullity of a contract has been adopted, all decisions
and documents in the pre-review and review procedure and
judicial proceedings, shall be public, with the exception of personal
data, classified parts pursuant to the act regulating classified
information, and parts designated as business secret pursuant to
the Act governing companies.
ALPPPP (Art. 67)
During its work, the National Review Commission shall protect
personal data and classified information, as well as data designated
as professional secrecy. Such data shall be treated according to
regulations governing their protection.
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8. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Public Procurement Act (Art. 35)
1) The contracting authority shall not disclose information
forwarded to it by economic entity designated as a business
secret, as laid down in the Act governing companies, unless
this or other law stipulates otherwise. The contracting
authority must ensure protection of data, which are
considered personal or confidential according to the provisions
of the law governing protection of personal data and
protection of classified information.
2) Notwithstanding the preceding paragraph, specifications of
goods, works or services and the quantities in this
specification, unit price, value of each item, total tender value
and all other information that have affected the ranking of bids
under the tender selection criteria are considered to be public
data.
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9. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
3) The contracting authority shall protect names of the
tenderers and submitted tenders as business secret until the
date set for the opening of the tenders.
4) After the decision on the award of the contract is final, all
documents relating to the award of the contract are
considered public, unless they contain business secrets,
confidential and personal data. Before that date, the
provisions of the law regulating access to public information
shall not be used.
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10. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Companies Act (Art. 39)
1) A trade secret shall be considered to include information
designated as such by a company's written decision. This
decision shall be notified to the Company Members,
employees, members of the company's governing bodies
and other persons bound to keep the trade secret.
2) Regardless of whether it is so provided by the decisions
referred to in the preceding paragraph, a trade secret
shall also include information for which it is clear that its
disclosure to an unauthorised person could result in
considerable damage. Company members, employees
and the members of a company's governing bodies and
other persons shall be responsible for the disclosure of
trade secret if they are aware or should be aware of such
information.
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11. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Judgement of the ECJ C-450/2006 (Varec)
• One of the fundamental rights … is the right to respect for
private life… It follows from the case-law of the European Court
of Human Rights that the notion of ‘private life’ cannot be taken
to mean that the professional or commercial activities of either
natural or legal persons are excluded… Those activities can
include participation in a contract award procedure.
• The maintenance of fair competition in the context of contract
award procedures is an important public interest, the protection
of which is acknowledged in the case-law of the ECJ.
• The adversarial principle does not mean that the parties are
entitled to unlimited and absolute access to all of the
information relating to the award procedure concerned which
has been filed with the body responsible for the review. On the
contrary, that right of access must be balanced against the right
of other economic operators to the protection of their
confidential information and their business secrets.
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12. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Judgement of the ECJ C-450/2006 (Varec)
• The principle of the protection of confidential information and
of business secrets must be observed in such a way as to
reconcile it with the requirements of effective legal protection
and the rights of defence of the parties to the dispute … and,
in the case of a review, in such a way as to ensure that the
proceedings as a whole accord with the right to a fair trial.
• To that end, the body responsible for the review must
necessarily be able to have at its disposal the information
required in order to decide in full knowledge of the facts,
including confidential information and business secrets.
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13. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Access to Public Information Act (Art. 6)
1) The body shall deny the applicant access to requested
information if the request relates to:
…
2. Information which is defined as a business secret in
accordance with the Act governing companies;
…
2) Without prejudice to the provisions in the preceding
paragraph, the access to the requested information is
sustained, if public interest for disclosure prevails over public
interest or interest of other persons not to disclose the
requested information…
3) Without prejudice to the provisions in the first paragraph, the
access to the requested information is sustained:
• if the considered information is related to the use of
public funds…
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14. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Access to Public Information Act (Art. 10a)
The registered entities liable … that are public procurement
contractors, grantors of concessions or public partners shall
within 48 days from the award of the contract, granting of
concession or selection of a contractor in a public-private
partnership based on the procedure regulated by acts on
public procurement, concessions and public-private
partnership publish generally accessible public information
from the contract on public procurement, concession or
public-private partnership. This information shall be
published on the websites intended for e-public
procurement in a machine-readable format.
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15. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
„SUPERVIZOR“
• an online application that provides information on
business transactions of the public sector bodies;
• designed and developed by Slovenia’s Commission for
the Prevention of Corruption;
• the application contains over 50 million transactions from
both government and local agencies to government
contractors since 2003,
• it matches such transactions to company records from
the Business Register, including director lists and
corporate leadership,
• For all transactions above 2000 EUR the application
provides information on: budget user, receiving entity,
company owners and subsidiary companies, timeline of
monthly sums of transactions, date of each transaction,
transaction description, recipients account number…
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16. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Dilemmas…
• the PP legislation strictly requires that all information, classified
by a tenderer as business secret, are protected, regardless of the
nature (objective secrecy) of such information.
• The Law defines certain information, which are sensitive and
should be protected (specifications of goods…), as public
information,
• The claimant is required to provide facts and evidence used as
proof of the alleged infringements in his review claim; although
he shows legal interest, during the PP procedure (remedies
procedure) he is only allowed a very limited access to
information;
• how to ensure protection of business secrets and at the same
time effective legal protection in public procurement procedures?
How to implement the judgment in Varec case?
• on the other hand, when the decision on awarding of the
contract is final, all information are made publicly available
(through Access to Public Information Act).
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17. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Thank you for your attention!
Borut Smrdel
borut.smrdel@dkom.si
+386 31 318 524
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