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© OECD A joint initiative of the OECD and the European Union, principally financed by the EU REGIONAL CONFERENCE ON PUBLIC PROCUREMENT REFORM IN WEST BALKAN.

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Presentation on theme: "© OECD A joint initiative of the OECD and the European Union, principally financed by the EU REGIONAL CONFERENCE ON PUBLIC PROCUREMENT REFORM IN WEST BALKAN."— Presentation transcript:

1 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU REGIONAL CONFERENCE ON PUBLIC PROCUREMENT REFORM IN WEST BALKAN -KEY CHALLENGES AND PRIORITIES FOR CHANGE- Pristina, 16 – 17 September 2008 Grand Hotel, Conference Room I - Public Procurement in the EC services: how do we work II - Public Procurement in the EU: recent developments Presented by: Olivier Moreau Seconded national expert in the European Commission Directorate General Internal Market & Services Unit C1: Economic and international dimension of procurement; E-procurement

2 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Director General Jörgen Holmquist Internal Audit Capability Nathalie Stefanowicz Deputy Director General Thierry Stoll Assistants Michael Hager Sven Gentner DG Internal Market and Services Principal Advisor J-C Thébault (detached to the President’s Cabinet) F1 Free movement of Capital and Financial Integration Francisco Caballero Deputy: Laurence Lennan Dir F Free movement of Capital, Company Law and Corporate Governance Pierre Delsaux Adviser: Piotr Madziar Dir G Financial services Policy and Financial Markets David Wright Dir E Services Guido Berardis E1 Services I Maria Martin-Prat Deputy: Martin Frohn G1 Financial services Policy Jean-Yves Muylle Dir H Financial Institutions Elemer Tertak H1 Banking and Financial Conglomerates Patrick Pearson Deputy : Arvind Wadhera F2 Company Law, Corpo- Rate Governance and Financial Crime Claire Bury Deputy: Philippe Pellé F3 Accounting Jeroen Hooijer Deputy : Ulf Linder E2 Services II Jean Bergevin Deputy: Salvatore D’Acunto G2 Financial Markets Infrastructure Mario Nava E3 Administrative Cooperation and Member State Network Nicholas Leapman G3 Securities Markets Maria Velentza (acting) H2 Insurance and Pensions Karel Van Hulle H3 Retail issues, Consumer Policy and Payment Systems Eric Ducoulombier (acting) B1 Policy Development and Coordination of the Internal Markt Bernhard Friess Deputy: Nathalie Berger Dir B Horizontal Policy Development Jacqueline Minor Adviser: Hakan Ander B2 Impact assessment, Evaluation and Economic Analysis Werner Stengg B3 Better Regulation Cycle: Legal aspects Henrik Mørch C1 Economic and Interna- tional Dimension of Public Procurement; E-Procurement Erik Nooteboom Deputy: Christian Servenay Dir C Public Procurement Policy Bertrand Carsin C3 Formulation and Enforcement** of Public Procurement Law I I Ugo Bassi Deputy: Klaus Wiedner C2 Formulation and Enforcement* of Public Procurement Law I Matthias Petschke Deputy: Gauthier Pierens D1 Copyright and Knowledge-based Economy Tilman Lueder Dir D Knowledge-based Economy Margot Froehlinger D2 Industrial Property Mirjam Söderholm (acting) D3 Regulated Professions Pamela Brumter Deputy: Jean-Marie Visée Dir A Planning, Administrative Support and Communication Henk Post A1 Human and Financial Resources Olivier Salles Deputy: Jan Sempels A2 Planning and Internal Control Matthew King A3 Information Techno- Logy and Document handling Fernando Toledano Deputy: Santiago Vazquez Souto * For BE, CY, FR, EL, HU, IE, LU, LT, LV, NL, PT, PL,ES,UK ** For AT, CZ, DK, EE, FI, DE, IT, MT, SE, SK, SI E4 Postal Services Jörg Reinbothe G4 Asset Management Niall Bohan Deputy: Didier Millerot B4 External aspects of the Internal Market Anthony Dempsey Deputy: Birgit Weise-Montag A4 Internal and External Communication Panayotis Stamatopoulos F4 Auditing Jürgen Tiedje Deputy Director General (vacant)

3 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Our working methods General aspects of assessment l What is at stake? - A well functioning, complete and sound procurement system l Our contribution? - Providing explanations, recommendations and legal assistance to the national administration

4 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Our working methods General aspects of assessment (II) Incorporation of the relevant procurement rules: - the basic principles of the EC Treaty - the relevant EC Directives - the relevant case-law of the ECJ - the “soft law” of the EC on the acquis Consistency with the EU-partner country agreement PP provisions (when applicable)

5 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Our working methods General aspects of assessment (III) l All kind of procedure: to comply with the Treaty l Above the thresholds: according to the rules describes in the PP Directives l Below the thresholds: proper solutions compliant to the relevant principles l Level of requirement according to the status of the partner country l Progress assessed within the whole spectrum of legal texts l For institutional building, according to experience, in the absence of precise requirements in the acquis.

6 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Our working methods Sequencing of the informal assessment of draft legislation l - Meeting the consultant to discuss the planned legislation with special regard to its relevance to legal approximation l - Prepare a draft text to be discussed with the consultant l - redraft it according to the consultant's eventual comments l - re-discuss it with the consultant l - submit the "final" draft to the Commission for comments l - discuss the text with the consultant in the light of the Commission's comments and redraft it (if necessary).

7 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Recent and future evolution  - some new legislative initiatives,  - several non binding documents,  - many studies and documents for reflection. 

8 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 8 The Review of the Remedies Directives Existing Directives on Remedies 89/665/EEC and 92/13/EEC - Pre-contractual remedies - Post-contractual remedies

9 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Review of the Remedies Directives New Directive on Remedies 2007/66/EC

10 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 10 The Review of the Remedies Directives Directive 2007/66/EC - Key elements of the review l Introduction of a standstill period between the award and the conclusion of a public contract l Combat against illegal direct awards of public contracts

11 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 11 The Review of the Remedies Directives I. Standstill period l Allows for effective pre-contractual remedies l Communication of both award decision and reasons l Waiting period of 10 calendar days as a minimum l Automatic suspension in case of application for review

12 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 12 The Review of the Remedies Directives The Review of the Remedies Directives Sanctions in case of violation of standstill ineffectiveness of the contract alternative penalties, such as fines

13 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 13 The Review of the Remedies Directives II. Illegal direct awards l Post-contractual remedies available (ineffectiveness) l Application within time limits (30 days or 6 months)

14 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 14 The Review of the Remedies Directives Sanctions in case of illegal direct awards ineffectiveness of the contract alternative penalties, such as fines

15 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Slide - 15 The Review of the Remedies Directives State of play legislative process l Publication of Directive 2007/66/EC on 20 December 2007 l Implementation by Member States within 24 months

16 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Work in progress: l the Defence procurement directive l GPA revision l Update of lists of contracting authorities/entities annexed to the PP directives

17 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Future legislative initiatives  - new standard forms  - ?

18 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Adoption of non binding documents Commission Interpretative Communication C(2007)6661on the application of Community law on Public Procurement and Concessions to Institutionalised Public-Private Partnerships (IPPP) - Addressing the creation and operation of IPPPs/ »in-house » - Political decision is necessary from the Commissioner and the College to go further through a legislative initiative on concessions - Key issues are: 1.Definition of concession 2.Scope of a possible initiative on concessions 3.Qualification of mixed concessions 4.Thresholds and method of calculation 5.Procedure to award concessions 6.Selection and award criteria 7.Duration of concessions 8.Amendments to the concession during its lifetime 9.Remedies regarding infringements to the EU rules

19 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Adoption of non binding documents  Commission services is preparing a Small Business Act in favour of SMEs. 

20 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Studies and documents for reflection  Commission services are developing:  - several projects listed in the Action plan on e-procurement (development on e- catalogues, e-signatures, compliance verification,…)  - evaluation studies of the Action plan, 

21 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Partners countries responsibility  They shall:  - make their legislation compatible with the Community acquis/or align to the acquis,  - prepare guidelines and operational tools,  - develop the capacity to manage an efficient and safe system of Public Procurement by setting up a relevant administrative capacity. 

22 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Practical issues encountered in the course of public procurement l No provisions in the Directives regarding implementation of the contract l The legal framework has to be completed in the national law implementing EU law And/or in its secondary legislation And/or in the internal rules of the Contracting Authorities l In any case, implementation rules have to comply with the principles of the Treaty the provision of the Directives, if any

23 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU For instance… l Addenda The calculation of the estimated value of a public contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract. (Dir 2004/18, art.9-1 §1, PPL art. Art.25-1) Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the following cases: (…) As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7. (Dir 2004/18, art.31-4 b) §2, PPL art.122 j) §6)

24 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU For instance … (II) l Black-listing The contracting authority has the right to exclude within the award of the public procurement contract procedure any tenderer/candidate if the tenderer/candidate: (…) has been convicted in the last 3 years by definitive court judgement, for an act that doesn’t correspond with the professional ethics or for a grave professional misconduct; (PPL art. 181 d) implementing Dir 2004/18 art d)

25 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Purchasers responsibility  Public Purchasers shall make use of all legal opportunities:  - implement national regulations with the aim to get best value for money,  - use the allowed flexibility (reduction of deadlines, specific types of procedures,…),  - take advantage of the new varied solutions offered (e-procurement facilities).

26 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Economic operators role  All economic operators should contribute to the completion of the Internal Market:  - to a fair and sound competition,  - to the reduction of public expenditures,  - to the quality of public services,  - to the improvement of productivity and the development of cross-border trade.

27 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU EC responsibility  What Commission services could do for you? l Economic and Financial Assistance: DG ELARG l Assistance by DG Internal Market and Services (Unit C1: Economic and International Dimension of Public Procurement Policy; e-procurement): Assistance in the interpretation of the EU procurement legislation, Organisation of bilateral expert meetings, Contribution to seminars and conferences, Support for the elaboration of national strategies, Help in the targeting of external assistance.

28 © OECD A joint initiative of the OECD and the European Union, principally financed by the EU  DG Markt – web pages (Action Plan, explanatory documents, studies)  IDA/IDABC – e-procurement (e-procurement tools, technical background documents, demonstrators)  SIMAP (standard forms, publication of notices)http://simap.eu.int Contact: FOR MORE INFORMATION


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