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How to set-up independent

review body in charge for legal

protection

Zoran Blažević, Croatia

Chisinau, Moldova, 9 June 2014

Content

• Public procurement system:

– Policy, legislative and institutional framework,

– Procurement related questions,

– Reviews and remedies.

• National procurement system–Croatian example

• Lessons learned

2

Policy framework

• A country needs a policy making which meets formal

requirements as well as good practice.

• Policy making should be clear, consistent and have

continuity.

• Strategy of development public procurement system

should be defined and adopted.

• Action plans should be defined and adopted.

3

Legislative Framework

• Transposition the public procurement EU acquis into

national legislation.

• Implementation of good practice:

– Clearly drafted

– Principle based

– Value for money

• Contracting authorities/entities should apply the

provisions of the public procurement legislation in a way

to enable effective procurement and efficient spending of

public procurement funds.

• Role of representatives of private sector?

4

Institutional Framework

• Should enable the effective implementation of policy and

legislation.

• Needs to be strong to provide and support development of the public procurement system as a whole:

Primary and secondary legislation

International co-ordination

Oversight and monitoring

Advisory and operational support

Publication and information

Development of the education system (contracting authorities and tenderers).

5

Reviews and remedies

• A crucial mechanism for protecting the legality and

integrity of the procurement process.

• Directive 2007/66 (amending Directive 89/665/EEC and

92/13/EEC)

• Independent review body

• It is forbidden to attempt to influence and impact on the

decision of the review body.

6

National Implementation

Main questions at the begining

Independent PRB

Specialized review body?

Administrative or civil judicial

review?

Composition of review bodies?

Number and size of review

bodies?

Procedural law?

Status of a tribunal (in meaning of Article 234 of the EEC Treaty) - Conditions for semi – judicial type of PRB -

Independent PRB

The body is established by

law

It is a permanent state body

Its jurisdiction is compulsory

Its procedure is inter partes

It applies rules of law and it is independent

Public procurement market

• The public procurement market should be open and

competitive.

• Invitation for tenders are published on central electronic

platforms and/or web sites of contracting

authorities/entities.

• Competition among tenderers is based on competence,

capacity, price and quality.

• Role of review institution?

9

How to establish independent PRB

• Financial budget

• Premises

• Number of employees

• Number of cases

• Other questions

• Legal education,

• Contracting authorities and private sector

• Attitudes of contracting authorities and private sector

• Public Procurement Law

• Procedural law?

• Law on PRB

• By laws

• Official manuals

• Courts or review bodies

• If you decide to use courts question of independence and number of other issues are solved

Institutional framework

Legal framework

Functional PRB

Review and remedies culture

First steps – Croatian example

• December 2003. – 6 employees

• Labor Law, vs Civil Servants Law

• Independents – key of success

• December, 2004. – 11 employees / 761 complaints

• December, 2006. – 20 employees / 696 complaints

• December, 2008. – 21 employees / 637 complaints

• December, 2009. – 21 employees / 1422 copmplaintes

• Budget per year cca 700.000,00 EUR

• Average value of appeal cases per year

cca 800.000.000,00 EUR in 2004-2008

First problems

2003 - 2005

• Office premises – SC was on second floor of Ministry of Finance

• Insufficient budget

• Lack of staff

• Lack of practical expiriance in the PRB members, regarding public procurement

• Position between executive Government and judiciary

•

• Visibility of the institution

Proactive approach

• Education, web – page development ww.dkom.hr,

day to day advice

• Workshops for the representatives of private sector

• Manuel for the contracting authorities and private

sector – topic public procurement remedies

• Development of DMS (Document management

system)

• SIGMA assistance

Branding of the institution

- visibility issue-

Internet web page

Appeal procedure

Transparency thru Internet

Lessons learned

• Transparent decision making process of the PRB

• Importance of the case law.

• Education of the private and public sector about legal protection in public procurement.

• Important role of media’s and journalist.

• Investment in human recourse – guaranties of the results in the future.

Thank you for your attention !

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