Presentation by Erika Bozzay, SIGMA, at the SIGMA regional conference on public procurement which took place in Beirut on 2-3 June 2015. Also available in Arabic.
3. 10/06/2015
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AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Importance of the review and
remedies system
Effective remedies
allow irregularities occurring in procurement
procedures to be challenged and corrected as soon as
they occur,
(and as a consequence)
increase the lawfulness and transparency of public
procurement procedures;
ensure fairness;
discourage illegal practices, incite for compliance and
integrity of the procurement process;
generate trust in the system, build confidence among
businesses as conditions for competition.
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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A functioning review and
remedies system
• available to any economic operator having an
interest in obtaining a particular public
procurement contract and who/whose
interests being harmed by an alleged
infringement
• clear and easy to use for economic operators
• effective in preventing and correcting unlawful
acts of contracting authorities and economic
operators
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7. 10/06/2015
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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What good procurement requires?
Key requirements in SIGMA’s Principles:
1. Public procurement is regulated by duly enforced policies and
procedures that reflect the principles of the Treaty on the
functioning of the European Union and the European Union
acquis, and are supported by suitably competent and
adequately resourced institutions.
2. In case of alleged breaches of procurement rules, aggrieved
parties have access to justice through an independent,
transparent, effective and efficient remedies system.
3. Contracting authorities are adequately staffed and resourced
and carry out their work in accordance with applicable
regulations and recognised good practice, interacting with an
open and competitive supply market.
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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Sub-principles
3. Due consideration is 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 process.
4. 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.
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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Sub-principles
5. The review and remedies system is easily
available to economic operators, without
discrimination and excessive cost.
6. The review organisation handles complaints
and sanctions in a timely manner, in
accordance with the law, and ensures their
effective and competent resolution.
7. Data on the functioning of the remedies
system is published without delay.
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15. 10/06/2015
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Institutional Models:
Administrative Bodies 2.
• 10 Member States (CY, DK, EE, ES, HR, HU, MT, PL,
SK and SI) have established specialised public
procurement review bodies (= established solely
to deal with cases relating to public procurement),
e.g.:
• the Tenders Review Authority in Cyprus,
• the State Commission for Supervision of Public
Procurement Procedures (SCSPPP) in Croatia,
• the Public Procurement Arbitration Board (PPAB) in
Hungary,
• the Public Contracts Review Board in Malta,
• the Office of Public Procurement (PPO) in Slovakia.
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Specialised Public Procurement
Review Bodies
• The procedure is usually simpler and quicker
than is the case in regular courts.
• The members of the specialised review body
deal exclusively with procurement cases (as a
result, they quickly gain specialised expertise).
• The cost involved when regular courts review
complaints may be much higher than it would
be in specialised review bodies, due to the
length of the procedure and the need for legal
representation.
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Institutional Models:
combination of the two
• In a few countries, depending on the nature of the
claim and the remedy sought, an application for
review can be made either to the administrative
or judicial body at first instance.
• e.g. in Belgium:
• claims for annulment or suspension:
• the Council of State (Administrative Branch) when the CAE is
an administrative body,
• the ordinary courts otherwise,
• claims for damages, declaration of absence of effects
and alternative sanctions: the ordinary courts (Ordre
judiciaire)
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18. 10/06/2015
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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Status and independence of a
specialised review body
• The independence of the review body is a
cornerstone for ensuring credible results of the
remedy procedures against public
procurement decisions (requirement of the
Remedies Directives as well as according to
international best practice)
• The issue of independence should be
addressed on two levels:
• Independence of the review body as an institution;
• Independence of the members of the review body.
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Independence of the members of
the review body
• The member’s independence is an essential
requirement for demonstrating the independent
status of the review body as an institution.
• Requirements:
• proper rules on the procedures of appointment and
dismissal of the members;
• the members must be protected by law from any
interference or even pressure;
• the members must exercise their functions with
complete independence, and any instructions given, in
the performance of their duties, on behalf of any other
person must be prohibited by law;
• proper conflict of interest rules;
• financial safety of the members
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23. 10/06/2015
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AjointinitiativeoftheOECDandtheEuropeanUnion,
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4 major steps for successful
remedies system
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Education of the
private and public
sector about legal
protection in public
procurement
PRB set-up
- Independents of PRB
- Sufficient budget
- Premises for PRB
Branding of the PRB
Transparent
functioning
Webpage
Awareness raising
material
Manuals for all stake
holders
PRB in the public
procurement system
• Relationship towards
the government
• Relationship towards
the representatives of
private sector
• Relationship toward
the contracting
authorities