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

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. 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. 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. Twinning project „Strengthening Public Procurement
Practices in Georgia“
The mail results
Legislation
Institutional and
administrative capacities
Remedy system
4

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. 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. Principles on legal protection
LEGAL
PROTECTION
RAPIDNESS
NON_DISCRIMINATION
AVAILABILITY
EFFECTIVNESS
7

8. Organisation of review system
JUDICIAL (REGULAR COURST):
Sweden, Italy, France, Austria,..
NON-JUDICIAL = SPECIFIC BODIES:
Germany, Denmark, Slovenia,..
8

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. 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.  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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Thank you for Your attention.
tadeja.pusnar@dkom.si
24