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

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. 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)
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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
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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
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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.
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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
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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. “
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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17. Thank you for your attention