hungarian system of reviews and remedies in public procurement
DESCRIPTION
HUNGARIAN SYSTEM OF REVIEWS AND REMEDIES IN PUBLIC PROCUREMENT. Gabriella Fribiczer Public Procurement Council. OVERVIEW. INSTITUTIONAL SET-UP LEGAL BACKGROUND REMEDIES IN PUBLIC PROCUREMENT. I. INSTITUTIONAL SET-UP. PUBLIC PROCUREMENT COUNCIL (PPC) I. - PowerPoint PPT PresentationTRANSCRIPT
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HUNGARIAN SYSTEM OF HUNGARIAN SYSTEM OF REVIEWS AND REMEDIESREVIEWS AND REMEDIES
IN PUBLIC PROCUREMENT IN PUBLIC PROCUREMENT
Gabriella FribiczerGabriella Fribiczer
Public Procurement CouncilPublic Procurement Council
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OVERVIEWOVERVIEW
INSTITUTIONAL SET-UPINSTITUTIONAL SET-UP LEGAL BACKGROUNDLEGAL BACKGROUND REMEDIES IN PUBLIC REMEDIES IN PUBLIC
PROCUREMENTPROCUREMENT
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I. I.
INSTITUTIONAL SET-INSTITUTIONAL SET-UPUP
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UPUBLIC PROCUREMENT
COUNCIL (PPC) I.
PPPPCC was established in 1995 (at the same was established in 1995 (at the same time time that that the the first PP first PP Act came into force) Act came into force)
aim: enforcing the objectives of the PP aim: enforcing the objectives of the PP ActAct
centralized, autonomous bodycentralized, autonomous body subordinated only to subordinated only to the the ParliamentParliamentmust must
report to the Parliament every yearreport to the Parliament every year central budgetary organcentral budgetary organ the Council convenes 7 to 8 times every the Council convenes 7 to 8 times every
yearyear
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UPUBLIC PROCUREMENT PUBLIC PROCUREMENT
COUNCIL (PPC) II.COUNCIL (PPC) II.
the PPthe PPCC is constituted of 19 members: is constituted of 19 members: - President- President - 6 members responsible for the enforcement - 6 members responsible for the enforcement
of the basic principles and public interestof the basic principles and public interest - 6 members representing the general interest - 6 members representing the general interest
of the contracting entitiesof the contracting entities - 6 members representing the general interest - 6 members representing the general interest
of the tenderersof the tenderers PPC members are not employed fullPPC members are not employed full--time time
(except the President)(except the President) the mandate of the PPthe mandate of the PPCC members is for not members is for not
less than a two year termless than a two year term
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UPUBLIC PROCUREMENT PUBLIC PROCUREMENT
COUNCIL (PPC) III.COUNCIL (PPC) III.
TThe President of the PPhe President of the PPCC is elected with a two-thirds quorum for a is elected with a two-thirds quorum for a
five year term of service by the members five year term of service by the members of the Council (may be re-elected once) of the Council (may be re-elected once)
employed full-timeemployed full-time independentindependent civil servantcivil servant entitled to salary and other benefits as entitled to salary and other benefits as
due to senior state secretariesdue to senior state secretaries
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USTRUCTURE OF PPCSTRUCTURE OF PPC
SECRETARIATSECRETARIAT
standing structure of PPC, led standing structure of PPC, led by the Secretary Generalby the Secretary General
in charge of coordinating the in charge of coordinating the activity of the Council, activity of the Council, preparing and implementing preparing and implementing the CPP’s decisions;the CPP’s decisions;
employing civil servantsemploying civil servants
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USTRUCTURE OF PPCSTRUCTURE OF PPC
ARBITRATION BOARDARBITRATION BOARD
operates alongside the operates alongside the PPCPPC set up also in 1995set up also in 1995 first instance public first instance public
procurement review bodyprocurement review body independent, administrativeindependent, administrative permanent „quasi-judicial” bodypermanent „quasi-judicial” body ””tribunal” entitled to make a tribunal” entitled to make a
reference to the ECJ (request for reference to the ECJ (request for preliminary ruling)preliminary ruling)
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USTRUCTURE OF PPCSTRUCTURE OF PPC
ARBITRATION BOARDARBITRATION BOARD
efficient operation of the Board is efficient operation of the Board is provided from the budget of the PPprovided from the budget of the PPCC
the Board consists of public the Board consists of public procurement commissionersprocurement commissioners
the chairperson and the vice-the chairperson and the vice-chairperson of the Board are elected chairperson of the Board are elected from the public procurement from the public procurement commissioners by the two-thirds of the commissioners by the two-thirds of the members of the Council in attendance, members of the Council in attendance, for a five-year termfor a five-year term (possibility of re-(possibility of re-election is not restricted)election is not restricted)
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UPUBLIC PROCUREMENT PUBLIC PROCUREMENT
COMMISSIONERS I.COMMISSIONERS I.
number of commissioners (staff of number of commissioners (staff of the Board) is determined by the the Board) is determined by the PPCPPC
commissioners are appointed and commissioners are appointed and recalled by the PPrecalled by the PPCC
they are they are full-time civil full-time civil servantsservants strict rules on incompatibility strict rules on incompatibility
related to the contracting entities related to the contracting entities and the tenderersand the tenderers
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UPUBLIC PROCUREMENT PUBLIC PROCUREMENT
COMMISSIONERS II.COMMISSIONERS II.
Commissioners may be Commissioners may be persons withpersons with
at least three years at least three years professional practice and professional practice and
a university level qualification, a university level qualification, as well asas well as
a special examination in a special examination in public administration and/or public administration and/or in in lawlaw
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JUDICIAL REVIEWJUDICIAL REVIEW
Municipal CourtMunicipal Court
Municipal Court of AppealsMunicipal Court of Appeals
Ordinary Civil Ordinary Civil Courts Courts (ineffectiveness + damages) – (ineffectiveness + damages) – will change in the future („one will change in the future („one court for all” concept)court for all” concept)
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II. II.
LEGAL LEGAL BACKGROUNDBACKGROUND
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PP PP LEGISLATIONLEGISLATION
the the former former PP Act : Act XL of PP Act : Act XL of 19951995
presentpresent PP Act: Act CXXIX of PP Act: Act CXXIX of 20032003
enterentereded into force on 1st of into force on 1st of May 2004 as a general rule;May 2004 as a general rule;
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PP PP LEGISLATIONLEGISLATION
implementation of Directives implementation of Directives 2004/17 and 2004/18: 15th January, 2004/17 and 2004/18: 15th January, 20062006
implementation of Directive implementation of Directive 2007/66: from 1st of January 2008 2007/66: from 1st of January 2008 and partially from 1st of June, 2008 and partially from 1st of June, 2008 (the first text is ready, consultation (the first text is ready, consultation process is on-going)process is on-going)
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THE PP ACT IN FORCETHE PP ACT IN FORCE
all the essential rules on award all the essential rules on award procedures and on review procedures, procedures and on review procedures, as well as on the operation of the PPC as well as on the operation of the PPC can be found in this one Actcan be found in this one Act
however: certain topics (e.g. however: certain topics (e.g. centralised procurements, order of centralised procurements, order of publication, tender notices) are publication, tender notices) are regulated in secondary legislation regulated in secondary legislation (governmental and ministerial (governmental and ministerial decrees) decrees)
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III.III.
REVIEWS AND REVIEWS AND REMEDIES IN PUBLIC REMEDIES IN PUBLIC
PROCUREMENT IN PROCUREMENT IN HUNGARYHUNGARY
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THE COMPETENCE OF THE COMPETENCE OF THE ARBITRATION THE ARBITRATION
BOARDBOARD conducting a procedure related to the conducting a procedure related to the
violation of the public procurement legislationviolation of the public procurement legislation settling legal disputes regarding the settling legal disputes regarding the
amendment or the performance of the amendment or the performance of the contract concluded in a public procurement contract concluded in a public procurement procedureprocedure
conducting an ex officio procedure related to conducting an ex officio procedure related to procedures without publication of a prior procedures without publication of a prior notice where the Chairperson of the notice where the Chairperson of the Arbitration Board finds that the justification Arbitration Board finds that the justification given for the choice of procedure is given for the choice of procedure is unacceptableunacceptable
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UGENERAL GENERAL
PROVISIONSPROVISIONS
tthe provisions of Act on the he provisions of Act on the general rules of state general rules of state administrative procedure shall administrative procedure shall apply to the procedure of the apply to the procedure of the Arbitration BoardArbitration Board
unless the PPA provides unless the PPA provides otherwiseotherwise
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UPROCEDURE OF THE PROCEDURE OF THE ARBITRATION BOARDARBITRATION BOARD
May be initiatedMay be initiated upon application orupon application or ex officio (two types)ex officio (two types)
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UPROCEDURE UPON PROCEDURE UPON
APPLICATIONAPPLICATION
Who may apply?Who may apply?An application may be submitted by An application may be submitted by
the contracting entitythe contracting entity any tenderer or any tenderer or
any other interested personany other interested person whose right or lawful/legitimate whose right or lawful/legitimate
interest has been violated or interest has been violated or jeopardised by activity or failure jeopardised by activity or failure which is in conflict with the PPAwhich is in conflict with the PPA
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UEX OFFICIO EX OFFICIO
PROCEDURESPROCEDURES
Ex officio procedures may be initiated by Ex officio procedures may be initiated by organisationsorganisations defined in the PPA:defined in the PPA:
MMemberemberss or the or the PPresident of the President of the PPCPC the State Audit Officethe State Audit Office the Government Control Officethe Government Control Office the Public Administration Office of the county or the Public Administration Office of the county or
BudapestBudapest the Hungarian State Treasury (in respect of the use of the Hungarian State Treasury (in respect of the use of
tied subsidy or addressed subsidy granted to local tied subsidy or addressed subsidy granted to local governments)governments)
the parliamentary commissionerthe parliamentary commissionerss the entity providing subsidy for public procurements;the entity providing subsidy for public procurements; the entity authorized to conduct public procurement the entity authorized to conduct public procurement
procedures in the scope of centralised public procedures in the scope of centralised public procurementprocurement
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UCONTROL OF PROCEDURES CONTROL OF PROCEDURES
WITHOUT PRIOR PUBLICATION WITHOUT PRIOR PUBLICATION OF A NOTICEOF A NOTICE
PP Act obliges PP Act obliges contracting entitiescontracting entities to to send the contract notice, along with the send the contract notice, along with the information and documents justifying the information and documents justifying the application of this procedure to the application of this procedure to the ChairChairpersonperson of the Arbitration Board of the Arbitration Board
if the Chairif the Chairpersonperson finds that the finds that the application of this procedure was application of this procedure was unfounded, he/she initiates the ex officio unfounded, he/she initiates the ex officio review procedure of the Arbitration review procedure of the Arbitration BoardBoard
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UCONTROL OF NEGOTIATED CONTROL OF NEGOTIATED
PROCEDURES WITHOUT PRIOR PROCEDURES WITHOUT PRIOR PUBLICATION OF A NOTICEPUBLICATION OF A NOTICE
the the Chairperson has 15 days to take Chairperson has 15 days to take this decisionthis decision
if the panel of the commissioners if the panel of the commissioners finds that the application was finds that the application was unlawful, it sets aside of the decision unlawful, it sets aside of the decision of the contracting entity concerning of the contracting entity concerning the choice of procedure (except the the choice of procedure (except the contract has already been concluded)contract has already been concluded)
in the latter case the Board imposes in the latter case the Board imposes a fine (up to thea fine (up to the 30 % of the value of 30 % of the value of the contract)the contract)
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URULES OF RULES OF
PROCEEDINGPROCEEDING
time limits for bringing actions (15 time limits for bringing actions (15 or 8 days)or 8 days)
pre-conditions of submitting an pre-conditions of submitting an application (contracting entity shall application (contracting entity shall be notified by the complainant, be notified by the complainant, application shall be submitted, application shall be submitted, administrative fee must be paid – administrative fee must be paid – 600 or 1500 euro) 600 or 1500 euro)
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URULES OF RULES OF
PROCEEDINGPROCEEDING
interim measuresinterim measures may be orderedmay be ordered (most (most frequently applied: suspension of the frequently applied: suspension of the contract award procedure or prohibition contract award procedure or prohibition of the conclusion of a contract);of the conclusion of a contract);
time limits for the Arbitration Board to time limits for the Arbitration Board to ensure rapid and effective remedies (15 ensure rapid and effective remedies (15 days without a hearing and 30 days if a days without a hearing and 30 days if a hearing is held; may be extended with 10 hearing is held; may be extended with 10 days, once)days, once)
in most of the cases the Arbitration in most of the cases the Arbitration Board holds hearingsBoard holds hearings
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DECISION MAKING I.DECISION MAKING I.
three commissioners shall proceed in three commissioners shall proceed in the public procurement matters as a the public procurement matters as a general rulegeneral rule
each time the members of the panel each time the members of the panel are appointed by the chairperson of are appointed by the chairperson of the Boardthe Board
at least two of them shall be a lawyer at least two of them shall be a lawyer and one member shall have a and one member shall have a university or college degree in the university or college degree in the field mostly connected with the field mostly connected with the subject of the mattersubject of the matter
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DECISION MAKING II.DECISION MAKING II.
the expert member shall have the expert member shall have knowledge of building and knowledge of building and construction, IT etc.construction, IT etc.
all commissioners shall have all commissioners shall have pp knowledgepp knowledge
the leader of the panel shall be the leader of the panel shall be the one with legal qualificationthe one with legal qualification
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DECISION MAKING III.DECISION MAKING III.
the commissioners cannot be the commissioners cannot be instructed in the specific cases instructed in the specific cases
their activity is governed exclusively their activity is governed exclusively by the provisions in the PP legislationby the provisions in the PP legislation
it is not uncommon that the it is not uncommon that the Arbitration Board finds against the Arbitration Board finds against the same organisations or companies same organisations or companies whose representatives are members whose representatives are members of the Councilof the Council
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ULEGAL CONSEQUENCES I.LEGAL CONSEQUENCES I.
In its decision, the Arbitration Board In its decision, the Arbitration Board refuses unfounded applicationsrefuses unfounded applications prior to the completion of the public prior to the completion of the public
procurement procedure, may request the procurement procedure, may request the person causing the violation of law to proceed person causing the violation of law to proceed in accordance with the rules of the PPA, in accordance with the rules of the PPA, and/or may make the decision to be made by and/or may make the decision to be made by the contracting entity subject to a conditionthe contracting entity subject to a condition
may set aside of the decision of the may set aside of the decision of the contracting entity made in the course of the contracting entity made in the course of the public procurement procedure, or completing public procurement procedure, or completing the public procurement procedure, except for the public procurement procedure, except for the case if the contract has already been the case if the contract has already been concluded on the basis of this decisionconcluded on the basis of this decision
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ULEGAL CONSEQUENCES LEGAL CONSEQUENCES
II.II.
Furthermore the Arbitration BoardFurthermore the Arbitration Board in addition to indicating the violated in addition to indicating the violated
provision of the PPA, may establish provision of the PPA, may establish the occurrence of the violation of lawthe occurrence of the violation of law
obliges the person violating the law obliges the person violating the law to bear the fee and costs of the to bear the fee and costs of the review procedurereview procedure
may prohibit the tenderer, for not may prohibit the tenderer, for not more than five years, to take part in a more than five years, to take part in a public procurement procedurepublic procurement procedure
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ULEGAL CONSEQUENCES LEGAL CONSEQUENCES
III.III.
Furthermore the Arbitration BoardFurthermore the Arbitration Board may strike the tenderer from the may strike the tenderer from the
official list of qualified official list of qualified tendererstenderers may impose penaltymay impose penalty may order the compulsory may order the compulsory
application of the PPA, regardless of application of the PPA, regardless of the value of the procurement, if the the value of the procurement, if the contracting entity violates the rules contracting entity violates the rules on prohibition of splitting up of on prohibition of splitting up of procurementsprocurements
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JUDICIAL REVIEW I.JUDICIAL REVIEW I.
tthe decision of the Arbitration he decision of the Arbitration Board may be the subject of Board may be the subject of judicial review judicial review
tthe persons whose rights or lawful he persons whose rights or lawful interests are violated by the interests are violated by the decision of the Arbitration Board decision of the Arbitration Board made on the merits of the case, made on the merits of the case, may request the court to review may request the court to review the decision in the form of a claimthe decision in the form of a claim
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JUDICIAL REVIEW II.JUDICIAL REVIEW II.
tthe claim shall be submitted to the he claim shall be submitted to the Arbitration Board within fifteen days Arbitration Board within fifteen days from the date of delivery of the decisionfrom the date of delivery of the decision
tthe submission of the claim has no he submission of the claim has no delaying effect with regard to the delaying effect with regard to the implementation of the decisionimplementation of the decision
tthis court procedure shall have priority his court procedure shall have priority over other cases (accelerated over other cases (accelerated procedure)procedure)
the Court may change the decision of the Court may change the decision of the Arbitration Board or may also order the Arbitration Board or may also order a new proceeding of the Boarda new proceeding of the Board
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JUDICIAL REVIEW III.JUDICIAL REVIEW III.
aan appeal may be lodged against n appeal may be lodged against the decision of the court of the the decision of the court of the first instance within eight days first instance within eight days from the communication of the from the communication of the decisiondecision
the court of second instance may the court of second instance may change the decision of the change the decision of the Municipal Court or may also order Municipal Court or may also order a new proceeding of the Boarda new proceeding of the Board
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UNUMBER OF REVIEW NUMBER OF REVIEW
PROCEDURES IN 2007PROCEDURES IN 2007
number of review number of review proceduresprocedures: 751 (decrease: in 751 (decrease: in 2005: 1091, 2006: 858)2005: 1091, 2006: 858)
aamong these: upon the mong these: upon the initiative of the Chairinitiative of the Chairperson person oof the Arbitration Board: f the Arbitration Board: 109109
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UDECISIONS OF THE DECISIONS OF THE
ARBITRATION BOARD IN 2007ARBITRATION BOARD IN 2007
rejection (appeal unfounded): rejection (appeal unfounded): 318318 the case was terminated: the case was terminated: 148 148
114848 appeal founded: appeal founded: 227227 pending proceedings: pending proceedings: 58 58
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JUDICIAL REVIEWJUDICIAL REVIEW
in 2007 122 decisions of the in 2007 122 decisions of the Arbitration Board were brougt to Arbitration Board were brougt to Court (16%, usually around 22%)Court (16%, usually around 22%)
in 2006 the Court finished 61 in 2006 the Court finished 61 cases, in 4 cases the decision of cases, in 4 cases the decision of the Board was changed, in 2 cases the Board was changed, in 2 cases the Court ordered new procedure the Court ordered new procedure of the Arbitration Board; in all of the Arbitration Board; in all other cases the decision of the other cases the decision of the Board was approved by the court/sBoard was approved by the court/s
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PUBLICATION OF THE PUBLICATION OF THE DECISIONS AND THE DECISIONS AND THE
RULINGSRULINGS
bboth the decisions of the oth the decisions of the Arbitration Board and the rulings Arbitration Board and the rulings of the courts shall be published in of the courts shall be published in the Public Procurement Bulletinthe Public Procurement Bulletin ((official organ of thofficial organ of the PPC)e PPC)
aas the Bulletin is published on the s the Bulletin is published on the Internet as well, the decisions and Internet as well, the decisions and the rulings are also available there, the rulings are also available there, free-of-chargefree-of-charge
© OECD
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int
initi
ativ
e of
th
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EC
D a
nd t
he E
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ean
Uni
on,
prin
cipa
lly f
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