© OECD

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Regional Conference

for Public Procurement Review Bodies

in EU Enlargement Countries

The independence of the review bodies and the requirement of impartiality

in decision-making

Gheorghe Cazan, Procurement Consultant, Romania

9 – 10 June 2016, Ohrid

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Review and remedies system

• An effective, rapid, transparent and non-discriminatoryremedies and review system is one of the key featuresdefining a sound and efficient public procurement system

• Main objective:

- to enforce the practical application of public procurementlegislation by ensuring that violations of this legislation and themistakes of the contracting authorities/entities can be corrected

• A crucial mechanism for protecting the legality andintegrity of the procurement process

• Basic principles and procedures in the field of review andremedies systems must be based on the specificrequirements of the EU Remedies Directives 89/665/EECand 92/13/EEC (as amended by Directives 2007/66/EC and2014/23/EU)

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Review bodies

• Different models for the establishment of a remediesinstitutional framework and different approaches forenforcement in EU Member States (due to the diversityof national legal traditions)

• Regular courts or specialised/administrative bodies? (inparticular as a first instance)

• Many member states - more than a half - set upspecialised/administrative bodies with the authority toprovide remedies

Rapidity (solved)

Independency (issue)

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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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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 thesuspension of the tender procedure or the implementation of any decisiontaken by the contracting authority;

- Set aside or ensure the setting aside of any decision taken unlawfully,including the removal of discriminatory technical, economic or financialspecifications in the tender notice or in tender documentation.

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Judicial Character of a Review Body

4. The procedure before the review body is between theparties (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 tochallenge all evidence and arguments presented by the other party

- Oral hearings (an acceptable alternative is to allow the parties to submitwritten statements during the review procedure)

- Both parties must have access to the review proceedings file, with theexception of confidential information

5. The body applies the rules of law

6. The body is independentThe main principle is that the review body carries out its task independentlyand under its own responsibility, and that its members are subject only toobservance of the law

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WTO Agreement

“Challenges shall be heard by a court or by animpartial and independent review body with nointerest in the outcome of the procurement andthe members of which are secure from externalinfluence during the term of appointment. “

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Independence of the review body

• Independent from the parties of procurementprocedures – contracting authorities/entities andeconomic operators

• Functionally independent of the Government

PPA has specific tasks of a review body (?)

Review body - under the supervision of a Ministry (?)

Review body – under the supervision of Parliament

• Executive government vs. private sector

• How to create trust from the side of private sector andavoid distrust?

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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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Independence of the Membersof the Review Body

• Procedures of appointment and dismissal

• Who appoints/dismisses the Members (?)

- President of the country

- Parliament

- Prime-Minister

• When does exist the possibility of dismissal, prior to theexpiration of the mandate (?)

- limited by the Law (PPL) to only a few specificcircumstances

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Independence of the Members

• Interference that might be exerted by the executiveand/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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Independence of the Members

• Usually, review body Members are forbidden to:

- Perform commercial activities, including consultancyactivities, directly or through intermediaries

- Exercise any public or private function, except foractivities in teaching, scientific research and/or literaryand artistic creation

- Hold the quality of member of a political party andperform or participate in political activities

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Independence of the Members

• Perception of the parties is important

- lack of knowledge/experience in public procurement

- lack of knowledge in technical aspects/specifications ofthe tender documents Abnormal low tenders

Discriminatory specifications

- delayed decisions

- contradictory decisions

- lack of transparency in the process of selection of themembers

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Independence of the review body

• Oral hearings

• External experts

• Visibility of the review body

- Transparent functioning

- Web – page

- Awareness raising material

- Manuals for all stakeholders

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Thank you for your attention