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Public Procurement in Transition Countries: Major Trends in Provision of Access to Justice 16 July 2014 UNCITRAL Standards for Transparency, Accountability.

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Presentation on theme: "Public Procurement in Transition Countries: Major Trends in Provision of Access to Justice 16 July 2014 UNCITRAL Standards for Transparency, Accountability."— Presentation transcript:

1 Public Procurement in Transition Countries: Major Trends in Provision of Access to Justice 16 July 2014 UNCITRAL Standards for Transparency, Accountability and Good Governance

2 European Bank for Reconstruction and Development 2 Cumulative business volume of €86 billion Note: Unaudited as at 31 December 2013 What is the EBRD? International financial institution owned by 64 countries and two inter-governmental institutions Operating in 34 countries from central Europe to central Asia Capital base of €30 billion Objectives Promote transition to market economies by investing mainly in the private sector Mobilize significant foreign direct investment Support privatization, restructuring and better municipal services to improve people’s lives Encourage environmentally sound and sustainable development Legal Transition Programme Aims to improve investment climate in the countries of operations by helping create an investor-friendly, transparent, and predictable legal environment

3 EBRD Assessments Public Procurement Sector Assessment Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Montenegro, Morocco, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine, and Uzbekistan 2012 Public Procurement Sector Assessment Update Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, and Ukraine 2011 UNCITRAL Model Law Diagnostic Armenia, Azerbaijan, Kyrgyz Republic, Moldova, Mongolia, Russian Federation, and Tajikistan Countries Surveyed

4 1. Can challenges be brought before an administrative review body? 4 Is administrative review system available? Yes Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Kazakhstan, Moldova, Mongolia, Montenegro, Morocco, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Ukraine, Republic of Kosovo Yes with reservations Jordan, Kyrgyz Republic, Latvia, Lithuania, Tunisia No with reservations No N/A All over the EBRD region, administrative review systems are available as an independent body of the executive branch. However, they seldom employ tribunal due process procedures.

5 2. Is the review body independent? 5 Is the reviewing body of procurement decisions independent? Yes Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Hungary, Kyrgyz Republic, Latvia, Lithuania, Moldova, Montenegro, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Turkey, Ukraine Yes with reservations Belarus, Georgia, Jordan, Morocco, Tunisia No with reservations Kazakhstan No N/A In most jurisdictions, public procurement law stipulates that the review system must be independent, especially from the contracting entity.

6 Focus on CIS countries 6 Does the public procurement law ensure that the review procedure be impartial? Yes Armenia Yes with reservations Mongolia Tajikistan No with reservations Azerbaijan Kyrgyz Republic Moldova No N/A Russian Federation Even structurally independent review bodies may not be impartial in practice. UNCITRAL on ImpartialityAssessment on Independence

7 3. Can challenges be brought before a court? 7 Is judicial review system available? Yes Armenia, Azerbaijan, Belarus, Bulgaria, Croatia, Egypt, Georgia, Hungary, Jordan, Kazakhstan, Lithuania, Mongolia, Montenegro, Morocco, Poland, Romania, Russia, Tajikistan, Turkey Yes with reservations Albania, Bosnia and Herzegovina, Kyrgyz Republic, Moldova, Slovak Republic, Slovenia, Tunisia, Ukraine No with reservations Estonia, FYR Macedonia, Latvia, Serbia No Republic of Kosovo N/A Judicial review is not as widely available as administrative review. In some countries, judicial review is available only after administrative review procedures have been exhausted.

8 4. Is monetary compensation available as a remedy? 8 Do the aggrieved complainants have a right to seek monetary compensation? Yes Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Serbia, Slovenia, Tunisia, Turkey Yes with reservations Moldova, Russia, Slovak Republic No with reservations Azerbaijan, Jordan, Ukraine No Albania, Belarus, Tajikistan N/A In many jurisdictions, monetary compensation is available if a complainant can prove that the contracting entity violated a specific provision and as a result lost the substantial chance it had at winning the challenged contract.

9 5. Is remedial action available as a remedy? 9 Do the aggrieved complainants have the right to seek remedial action in lieu of monetary compensation? Yes Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Estonia, FYR Macedonia, Hungary, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Yes with reservations Croatia No with reservations Georgia, Jordan No Egypt N/A Remedial action is more widely available than monetary compensation as an available remedy.

10 Focus on CIS region: Suspension measures 10 Is the award procedure suspended? Yes Armenia Azerbaijan Mongolia Russian Federation Yes with reservations Kyrgyz Republic Moldova No with reservations No Tajikistan N/A Is the contract award suspended? Yes Armenia Azerbaijan Mongolia Yes with reservations Kyrgyz Republic Moldova No with reservations NoRussian Federation Tajikistan N/A

11 6. Are procurement proceeding records accessible? 11 Does the law require written records of the procurement proceedings to be maintained? Yes Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Latvia, Lithuania, Montenegro, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Yes with reservations Belarus, Estonia, Moldova No with reservations Kyrgyz Republic, Mongolia No Morocco, Republic of Kosovo N/A In most countries, records are maintained and accessible through online publication. Advancement in IT has made it cheaper to gather and publish procurement records to a broader audience.

12 7. Does the public procurement law have specific confidentiality provisions? 12 Does the public procurement law contain specific requirements on confidentiality of information? Yes Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, FYR Macedonia, Hungary, Jordan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Yes with reservations Georgia No with reservations Egypt, Kazakhstan No N/A In almost all jurisdictions, public procurement laws stipulate specific requirements on confidentiality of information in tender processes.

13 8. Is the reviews process accessible to SMEs? 13 Does the public procurement law stipulate that the remedies system be inexpensive? Yes Armenia, Egypt, Georgia, Kyrgyz Republic, Latvia, Moldova, Mongolia, Montenegro, Romania, Russia, Tunisia, Turkey Yes with reservations Albania, Belarus, Bosnia and Herzegovina, Estonia, FYR Macedonia, Lithuania, Serbia, Slovenia, Tajikistan No with reservations Georgia, Jordan, Kazakhstan, Poland, Slovak Republic, Ukraine No Azerbaijan, Bulgaria, Hungary, Jordan, Morocco, Republic of Kosovo N/A Croatia Procurement reviews and remedies system remains costly in many jurisdictions, restricting SME suppliers’ access to justice.

14 Conclusion 14 Review and remedies system should be affordable, timely, and effective 1.Administrative review is widely available but lacks due process procedures 2.Judicial review is not widely available and where available, often lacks suspension measures to effectively implement remedies 3.Public procurement decisions and actions are still largely insulated from public scrutiny because review and remedies system remains expensive for wide use

15 Contacts 15 For all further enquiries, please contact: Michel Nussbaumer Chief Counsel Legal Transition Team Tel: EBRD One Exchange Square London, United Kingdom


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